DOL ISSUES FINAL RULE TO SIMPLIFY RETAIL OR SERVICE ESTABLISHMENT EXEMPTION

WASHINGTON, DC – The U.S. Department of Labor today announced a final rule to provide greater simplicity and flexibility to retail industry employers.

Provisions in the Fair Labor Standards Act (FLSA) allow employers in retail and service industries to exempt certain employees paid primarily on a commission basis from overtime.

Today’s rule withdraws two provisions from the Department’s Wage and Hour Division regulations. The first listed industries that the Department previously viewed as having “no retail concept,” which made them ineligible to claim the exemption. The second listed industries that, in the Department’s view, “may be recognized as retail,” and were potentially eligible for the exemption. As the rule explains, some courts have questioned whether these lists lack any rational basis.

By withdrawing these two lists, establishments in industries that had been on the non-retail list may now assert that they have a retail concept and—if they meet the existing definition of retail and other criteria—may now qualify for the exemption. Insofar as these establishments were deterred from availing themselves of the exemption and its flexibilities, they may now do so if they qualify—including by having more flexibility to work with workers on commission-based pay arrangements. For these employers and workers, they could consider whether, for instance, more commission-based pay is sensible.

Establishments in industries that were on the “may be” retail list may continue to assert they have a retail concept.

Moving forward, the Department will apply the same analysis to all establishments to determine whether they have a retail concept and qualify as retail or service establishments, promoting greater simplicity and flexibility for employers and workers alike.

“This final rule unshackles job creators in the retail space who had previously been categorically excluded from the exemption without notice and comment,” said Wage and Hour Division Administrator Cheryl Stanton. “Permitting all retail employers to potentially qualify for this exemption can increase flexibility for businesses and workers. Eliminating confusion empowers job creators to grow their businesses, comply with the law and provide even more good jobs for American workers.”

The Department is issuing this rule without notice and comment, and it will take immediate effect. Neither notice and comment nor a delayed effective date are needed because both lists being withdrawn were interpretive regulations originally issued in 1961 without notice and comment or a delay.

BLS publishes statistics on workers’ injuries and illnesses in 2018

There were 900,380 nonfatal workplace injuries and illnesses in the private sector in 2018 in which the injured or ill worker took a least one day away from work to recuperate. This was essentially the same number reported for 2017. The incidence rate remained unchanged in 2018 at 89.7 cases per 10,000 full-time workers. In 2018, the median days away from work to recuperate was 8 days, the same as reported in 2017.

Workers in transportation and material moving occupations experienced 184,470 injuries and illnesses in 2018 that resulted in days away from work. That was 20 percent of all the cases that resulted in days away from work. The incidence rate for transportation and material moving workers was 193.7 cases per 10,000 full-time workers. These workers took a median of 13 days away from work to recuperate from their injuries and illnesses.

Building and grounds cleaning and maintenance workers had 54,400 injuries and illness in 2018 that resulted in days away from work. The incidence rate for these workers was 166.0 cases per 10,000 full-time workers. They took a median of 7 days away from work to recuperate from their injuries and illnesses.

These data are from the Injuries, Illnesses, and Fatalities program.

SUGGESTED CITATION

Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Transportation and material moving workers experienced 184,470 injuries and illnesses in 2018 on the BLS website (visited December 07, 2019).

U.S. DEPARTMENT OF LABOR INVESTIGATION RESULTS IN MINNESOTA FOUNDRY PAYING ENGINEER $190,357 FOR H-1B VISA VIOLATIONS

MINNEAPOLIS, MN

The H-1B visa program permits American employers to employ nonimmigrants to work temporarily in specialized occupations in the U.S. when they cannot otherwise obtain needed business skills and abilities from the U.S. workforce.

The ARB and an administrative law judge upheld WHD’s findings that ME Global Inc.

ME Global Inc. also failed to maintain documentation required by the LCA such as documentation of the prevailing wage, scope of work, and method used for determining wages rates and failed to post information about the LCA in employment locations.

The law establishes certain standards in order to protect similarly employed U.S. workers from being affected adversely by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers.

For more information about wage laws enforced by WHD, contact the Division’s toll-free helpline at 866-4US-WAGE (

WHD’s mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation’s workforce.

The mission of the Department of Labor is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.