FLSA2009-5
January 14, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether the
minimum wage and overtime exemption for seasonal amusement or recreational
establishments in the Fair Labor Standards Act (FLSA)[1] applies to lifeguards at a town beach.
It is our opinion that this exemption applies to these lifeguards.
The town employs 27 seasonal lifeguards who are employed for less than seven
months of the year to protect swimmers at the local beach. You wish to confirm
that these individuals are exempt from the FLSA’s minimum wage and overtime
pay requirements. We assume for purposes of this letter that these individuals
are employed by the town exclusively as lifeguards at the beach, which is
open to the public for lifeguard-protected swimming for less than seven months
of the year, and that they are not employed by the town in any other capacity.
Section 13(a)(3) of the FLSA provides an exemption from minimum wage and
overtime requirements for any employee employed by an establishment that is
an amusement or recreational establishment, organized camp, or religious or
non-profit educational conference center that either “does not operate for
more than seven months in any calendar year,” 29 U.S.C. § 213(a)(3)(A), or,
“during the preceding calendar year,” has “average receipts for any six months
of such year [of] not more than 33 1/3 per centum of its average receipts
for the other six months of such year.” Id. § 213(a)(3)(B).
As used in the FLSA, the term “establishment” refers to a distinct physical
place of business rather than to an entire business or enterprise, which may
include several separate places of business. See 29
C.F.R. § 779.23A city or town’s entire municipal government, for
example, cannot qualify as an amusement or recreational establishment. Likewise,
parks department employees who are employed by a central, non-recreational
agency facility do not qualify for the exemption, even if they are employed
only seasonally. See
FOH §§ 25j04(b); 25j10;
Wage and Hour Opinion Letter October 5, 1999 (copy enclosed). Employees who
work solely at a separate and distinct amusement or recreational facility
operated by a municipality, however, do qualify for the exemption if the seasonal
amusement or recreational establishment tests are met:
Among the activities that the Department
has determined may be amusement or recreational establishments operated by
a city are stadiums, golf courses, swimming pools, summer camps, ice skating
rinks, zoos, beaches, and boardwalk facilities . . . . For example, lifeguards
on a beach and other employees who are engaged in work solely connected with
the operation of the beach would come within the exemption provided the establishment
(the beach) is not open as a recreational facility (i.e., protected
swimming) for more than 7 months in any calendar year.
Wage and Hour Opinion Letter May 12, 1986 (copy enclosed). See also
Wage and Hour Opinion Letter January 17, 1986 (copy enclosed); FOH § 25j11.
To be exempt under section 13(a)(3), an employee must be employed in an amusement
or recreational establishment that meets either the seasonal operations test
contained in section 13(a)(3)(A) or the seasonal receipts test contained in
section 13(a)(3)(B) discussed above. A state or local government-operated
amusement or recreational establishment; such as a public beach, that has
operating costs that are met wholly or primarily from general tax revenues,
as we assume is the case here, does not qualify for the exemption under the
seasonal receipts test in section 13(a)(3)(B). Such an establishment, however,
may qualify under the seasonal operations test in section 13(a)(3)(A). See
FOH § 25j12.
Finally, the exemption is not lost simply because some of the exempt employees
work more than seven months in the year:
The fact that some of the lifeguards [may]
work more than seven months in the year maintaining the equipment would not
serve to deny the exemption under section 13(a)(3), provided the establishment
(the beach) is not open as a recreational facility (i.e., protected
swimming) for more than seven months in any calendar year.
Wage and Hour Opinion Letter January 24, 1975 (copy enclosed). Therefore,
assuming that the beach in question is, in fact, not open for protected swimming
for more than seven months in any calendar year, the lifeguards are exempt
from the overtime and minimum wage requirements of the Act pursuant to section
13(a)(3).
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your letter
might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department
of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
[1]
Unless otherwise noted, any statutes, regulations, opinion letters, or
other interpretive material cited in this letter can be found at www.wagehour.dol.gov.
