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CFR  

Code of Federal Regulations Pertaining to ESA

Title 29  

Labor

 

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 779.309 - Employed ``in'' but not ``by.''

  • Section Number: 779.309
  • Section Name: Employed ``in'' but not ``by.''

    Since the exemptions by their terms apply to the employees 
``employed by'' the exempt establishment, it follows that those 
exemptions will not extend to other employees who, although actually 
working in the establishment and even though employed by the same person 
who is the employer of all under section 3(d) of the Act, are not 
``employed by'' the exempt establishment. Thus, traveling auditors, 
manufacturers' demonstrators, display-window arrangers, sales 
instructors, etc., who are not ``employed by'' an exempt establishment 
in which they work will not be exempt merely because they happen to be 
working in such an exempt establishment, whether or not they work for 
the same employer. (Mitchell v. Kroger Co., 248 F. 2d 935 (CA-8).) For 
example, if the manufacturer sends one of his employees to demonstrate 
to the public in a customer's exempt retail establishment the products 
which he has manufactured, the employee will not be considered exempt 
under section 13(a)(2) since he is not employed by the retail 
establishment but by the manufacturer. The same would be true of an 
employee of the central offices of a chain-store organization who 
performs work for the central organization on the premises of an exempt 
retail outlet of the chain (Mitchell v. Kroger Co., supra.)
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