Are you exempt from overtime wage requirements under the FLSA? Follow up:

Are you exempt from the overtime wage requirements of the FLSA?
Check out Rodriguez v. Home Heroes, LLC

In follow up to our last post regarding employer liability for overtime wages under the Fair Labor Standards Act, although 29 CFR 779.317 provides a list of business organizations lacking a “retail concept,” including building contractors and construction contractors, so as to preclude those organizations from coming within the exemption requirements of 207(i) (which provides for exemption from the requirement of having to pay overtime wages under specific circumstances) the case of Rodriguez v. Home Heroes, LLC, 2015 WL 668009, at 6 (M.D. Fla. Feb. 17, 2015) may provide some inroads to this issue.

The Rodriquez case involved a licensed plumbing contractor which provided primarily residential plumbing services. The plaintiffs in that case were technicians, whose duties were to sell the job and install the job to the homeowner. The plaintiffs were paid strictly on a commission basis with no guaranteed hourly or weekly wage draw. Plaintiffs claimed claimed they worked significant overtime hours for which they were not appropriately paid. The Defendant employer claimed it was exempt under 29 U.S.C. §207(i) in part because it was a "retail or service establishment."

The Plaintiff in Rodriguez relied solely on the regulation (C.F.R. §779-312) that specifically lists plumbing contractors as an establishment lacking “retail concept.” The Court declined to follow this reasoning, stating that it would consider the underlying questions set forth in C.F.R. §779-318(a); does the business 1) sell goods to the general public; 2) serve the everyday needs of the community; and 3) is at the end of the stream of distribution.

Many, if not most construction contractors, may qualify as a retail or service establishment under §207(i) if the operation of the business is tested as to these three questions, even though those business organizations are listed generally under C.F.R.§779-312. Qualifying as a retail or service establishment could mean the difference in whether the employer was obligated to pay overtime wages.