(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.
902.)
(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
mechanics.
(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
Provided
