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Code of Federal Regulations Pertaining to ESA

Title 29  



Chapter V  

Wage and Hour Division, Department of Labor



Part 779  

The Fair Labor Standards Act As Applied to Retailers of Goods or Services




Subpart D  

Exemptions for Certain Retail or Service Establishments

29 CFR 779.372 - Nonmanufacturing establishments with certain exempt employees under section 13(b)(10).

  • Section Number: 779.372
  • Section Name: Nonmanufacturing establishments with certain exempt employees under section 13(b)(10).

    (a) General. A specific exemption from only the overtime pay 
provisions of section 7 of the Act is provided in section 13(b)(10) for 
certain employees of nonmanufacturing establishments engaged in the 
business of selling automobiles, trucks, trailers, farm implements, or 
aircraft. Section 13(b)(10) states that the provisions of section 7 
shall not apply with respect to ``any salesman, partsman, or mechanic 
primarily engaged in selling or servicing automobiles, trailers, trucks, 
farm implements, or aircraft if employed by a nonmanufacturing 
establishment primarily engaged in the business of selling such vehicles 
to ultimate purchasers.'' This exemption will apply irrespective of the 
annual dollar volume of sales of the establishment or of the enterprise 
of which it is a part.
    (b) Character of establishment and employees exempted. (1) An 
establishment will qualify for this exemption if the following two tests 
are met:
    (i) The establishment must not be engaged in manufacturing; and
    (ii) The establishment must be primarily engaged in the business of 
selling automobiles, trailers, trucks, farm implements, or aircraft to 
the ultimate purchaser. If these tests are met by an establishment the 
exemption will be available for salesmen, partsmen, and mechanics, 
employed by the establishment, who are primarily engaged during the work 
week in the selling or servicing of the named items. An explanation of 
the term ``employed by'' is contained in Secs. 779.307 through 779.311. 
The exemption is intended to apply to employment by such an 
establishment of the specified categories of employees even if they work 
in physically separate buildings or areas, or even if, though working in 
the principal building of the dealership, their work relates to the work 
of physically separate buildings or areas, so long as they are employed 
in a department which is functionally operated as part of the dealership 
(H. Rept. No. 1366, 89th Cong., second session, page 42; Sen. Rept. No. 
1487, 89th Cong., second session, page 32). However, the salesman, 
partsman, or mechanic, to qualify for exemption, must be ``primarily 
engaged in selling or servicing automobiles, trailers, trucks, farm 
implements, or aircraft.'' (H. Rept. No. 2004, 89th Cong., second 
session, pp. 7, 19.)
    (2) This exemption, unlike the former exemption in section 13(a)(19) 
of the Act prior to the 1966 amendments, is not limited to dealerships 
which qualify as retail or service establishments nor is it limited to 
establishments selling automobiles, trucks, and farm implements, but 
also includes dealers in aircraft and trailers.
    (c) ``Salesman, partsman, or mechanic.'' (1) As used in section 
13(b)(10), a salesman is an employee who is employed for the purpose of 
and is primarily engaged in making sales or obtaining orders or 
contracts for sale of the vehicles or farm implements which the 
establishment is primarily engaged in selling. Work performed incidental 
to and in conjunction with the employee's own sales or solicitations, 
including incidental deliveries and collections, is regarded as within 
the exemption.
    (2) As used in section 13(b)(10), a partsman is any employee 
employed for the purpose of and primarily engaged in requisitioning, 
stocking, and dispensing parts.
    (3) As used in section 13(b)(10), a mechanic is any employee 
primarily engaged in doing mechanical work (such as get ready mechanics, 
automotive, truck, farm implement, or aircraft mechanics, used car 
reconditioning mechanics, and wrecker mechanics) in the servicing of an 
automobile, trailer, truck, farm implement, or aircraft for its use and 
operation as such. This includes mechanical work required for safe 
operation, as a vehicle, farm implement, or aircraft. The term does not 
include employees primarily performing such nonmechanical work as 
washing, cleaning, painting, polishing, tire changing, installing seat 
covers, dispatching, lubricating, or other nonmechanical work. Wrecker 
mechanic means a service department mechanic who goes out on a tow or 
wrecking truck to perform mechanical servicing or repairing of a 
customer's vehicle away from the shop, or to bring the vehicle back to 
the shop for repair service. A tow or wrecker truck driver or helper who 
performs nonmechanical repair work is not exempt. When employed by an 
establishment qualifying under section 13(b)(10) which sells and 
services trailers, mechanics primarily engaged in servicing the trailers 
for their use and operation as such may qualify for the exemption. 
``Trailers'' include a wide variety of non-powered vehicles used for 
industrial, commercial, or personal transport or travel on the highways 
by attaching the vehicle to the rear of a separate powered vehicle. 
Mechanics servicing mobile homes for operation and use as a trailer, if 
and to the extent that they are operated as such on their own suspension 
systems would appear to be performing work within the purview of the 
exemption provided for mechanics in section 13(b)(10) to the same extent 
as mechanics servicing automobiles, ordinary travel, boat, or camping 
trailers, trucks, and truck or tractor trailers. On the other hand, 
there is no indication in the statutory language or the legislative 
history of any intent to provide exemption for mechanics whose work is 
directed to the habitability as a residence of a dwelling to be used as 
such on a fixed site in a particular locality, merely because the home 
is so designed that it may be moved to another location over the 
highways more readily than the traditional types of residential 
structures. Accordingly, servicemen checking, servicing, or repairing 
the plumbing, electrical, heating, air conditioning, or butane gas 
systems, the doors, windows, and other structural features of mobile 
homes to make them habitable or more habitable as residences are, while 
so engaged, not deemed to qualify as ``mechanic(s) * * * servicing * * * 
trailers'' within the meaning of section 13(b)(10). (Snell v. Quality 
Mobile Home Brokers, 424 F. 2d 233 (C.A. 4); Schultz v. Louisiana 
Trailer Sales, Inc. 428 F. 2d 61 (C.A. 5) certiorari denied, 400 U.S. 
    (4) Employees variously described as service manager, service 
writer, service advisor, or service salesman who are not themselves 
primarily engaged in the work of a salesman, partsman, or mechanic as 
described above are not exempt under section 13(b)(10). This is true 
despite the fact that such an employee's principal function may be 
diagnosing the mechanical condition of vehicles brought in for repair, 
writing up work orders for repairs authorized by the customer, assigning 
the work to various employees and directing and checking on the work of 
    (d) Primarily engaged. As used in section 13(b)(10), primarily 
engaged means the major part or over 50 percent of the salesman's, 
partsman's, or mechanic's time must be spent in selling or servicing the 
enumerated vehicles. As applied to the establishment, primarily engaged 
means that over half of the establishments annual dollar volume of sales 
made or business done must come from sales of the enumerated vehicles.
[35 FR 5856, Apr. 9, 1970, as amended at 38 FR 7549, Mar. 23, 1973]

  Other Establishments for Which Special Exceptions or Exemptions Are 
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