Partial Lists of Establishments that Lack or May Have a “Retail Concept” Under the Fair Labor Standards Act

Section 7(i) of the Fair Labor Standards Act (FLSA or Act) provides an exemption from the Act's overtime compensation requirement for certain commissioned employees employed by a retail or service establishment. In this final rule, the Department of Labor (Department) withdraws the "partial list of establishments" that it previously viewed as having "no retail concept" and categorically unable to qualify as retail or service establishments eligible to claim the section 7(i) exemption; and the "partial list of establishments" that, in its view, "may be recognized as retail" for purposes of the exemption. Removing these lists promotes consistent treatment when evaluating section 7(i) exemption claims by treating all establishments equally under the same standards and permits the reevaluation of an industry's retail nature as developments progress over time. This withdrawal will also reduce confusion, as the list of establishments that "may be recognized as retail" did not necessarily affect the analysis as to whether any particular establishment was, in fact, retail.