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Code of Federal Regulations Pertaining to ESA |
| Labor |
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| Wage and Hour Division, Department of Labor |
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| The Fair Labor Standards Act As Applied to Retailers of Goods or Services |
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| Employment to Which the Act May Apply; Enterprise Coverage |
29 CFR 779.256 - Conditions for enterprise coverage of gasoline service establishments.
- Section Number: 779.256
- Section Name: Conditions for enterprise coverage of gasoline service establishments.
(a) The requirement that the enterprise must be ``an enterprise
engaged in commerce or in the production of goods for commerce'' is
discussed in Secs. 779.237 through 779.243. Those sections explain which
employees are engaged in commerce or in the production of goods for
commerce, including employees handling, selling, or otherwise working on
goods that have been moved in or produced for commerce by any person. In
connection with the discussion in those sections as it concerns
employees of gasoline service establishments, it should be noted that as
a general rule such employees normally are ``engaged in commerce or in
the production of goods for commerce'' within the meaning of the Act.
For example, gasoline filling station employees servicing motor vehicles
used in interstate transportation or in the production of goods for
commerce have always been regarded as being ``engaged in commerce or in
the production of goods for commerce'' within the meaning of the Act.
Such employees will also be considered as engaged in handling, selling
or otherwise working on goods that have been moved in or produced for
commerce by any person, if the gasoline or lubricating oils or the other
goods with respect to which they perform the described activities have
come from outside the State in which the establishment is located.
(b) For periods before February 1, 1969, a gasoline service
establishment was within the scope of the enterprise coverage provisions
of the Act only if its annual gross volume of sales was not less than
$250,000, exclusive of excise taxes at the retail level which are
separately stated. Until such date, a gasoline service establishment
which did not have such an annual gross volume of sales was not a
covered enterprise, and enterprise coverage did not extend to it by
virtue of the fact that it is an establishment of an enterprise which
meets coverage tests of section 3(s). In determining whether the
establishment has the requisite annual gross volume of sales the
receipts from all sales of the establishment are included without
limitation to the receipts from sales of gasoline and lubricating oil.
In computing the annual gross volume of sales the gross receipts from
all types of sales during a 12-month period are included. These gross
receipts are measured by the price paid by the purchaser of the goods or
services sold by the establishment (Sen. Rept. 1487, 89th Cong. second
session p. 7). Thus, where the establishment sells gasoline for an oil
company on commission, annual gross volume is based on the retail sale
price and not on the smaller amount retained or received as commissions.
A further discussion of what sales are included in the annual gross
volume is contained in Secs. 779.258 through 779.260.
(c) In computing the annual gross volume of sales, excise taxes at
the retail level which are separately stated are not counted. A
discussion of the excise taxes which may be excluded under this
provision is contained in Secs. 779.261 through 779.264. Whether the
particular taxes are ``excise taxes at the retail level'' depends upon
the facts in each case. If the taxes are ``excise taxes at the retail
level'' they will be excludable only if they are ``separately stated.''
Where a gasoline station posts a sign on or alongside the gasoline pumps
indicating that a certain amount per gallon is for a specific excise
tax, this will meet the requirement of being ``separately stated''. The
method of calculating annual gross volume of sales is explained in
greater detail in Secs. 779.265 through 779.269.
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