Brennan v. Great Am. Disc. & Credit Co., 477 F.2d 292, 296 (5th Cir. 1973) (citing 29 C.F.R. §§ 779.312-779.321); Parker v. ABC Debt Relief Co., No. 3:10-CV-1332-P, 2013 WL 371573, at *9 (N.D. Tex. Jan. 28, 2013). DOL regulations indicate that the exemption is meant to apply to “traditional” retail businesses like restaurants and repair shops that are ordinarily available to the general consuming public.
Although courts are not bound by the DOL's interpretive bulletins, they do provide guidance because they reflect the position of those most experienced with the application of the Act. Parker v. ABC Debt Relief Co., No. 3:10-CV-1332-P, 2013 WL 371573, at *9 (N.D. Tex. 2013). Along with § 779.318, Plaintiffs rely heavily on § 779.316 (both of which are still in effect), which states that "[t]he term 'retail' is alien to some businesses or operations.
Instead, credit repair organizations are more similar to establishments like credit bureaus and collection agencies, banks, brokers, building and loan associations, and finance companies, which have been found to lack a retail concept, than they are to the types of establishments in § 779.320's list of businesses that do have a retail nature. See Parker v. ABC Debt Relief, Ltd. Co., Case No. 3:10-cv-1332-P, 2013 WL 371573, at *10 (N.D. Tex. Jan. 28, 2013) ("Defendants' debt negotiation and settlement business was similar to other establishments that lack a ‘retail concept’—such as banks, brokers, credit companies, and loan offices."); Hodgson v. N.G. Kallas Co., 480 F.2d 994, 996 (6th Cir. 1973) ("Although the legislative history does not specifically mention bookkeeping and tax reporting services, it does relate that other businesses providing assistance with financial records, such as banks, insurance companies, building and loan associations, and credit companies, are not retail as that term is used in the exemption provision."). Defendants argue that Plaintiffs are attempting "to shoehorn Ovation's business into a dated DOL regulation, 29 C.F.R. § 779.317, with arcane financial industry concepts that simply do not apply in modern commerce."
To determine whether an employer is a "retail or service establishment" for purposes of the § 207(i) exemption, courts look to the former statutory definition in Section 13(a)(2) of the FLSA, codified as 29 U.S.C. § 213(a)(2) (repealed 1989). Parker v. ABC Debt Relief, Ltd. Co., No. 3:10-CV-1332-P, 2013 WL 371573, at * 8 (N.D. Tex. Jan. 28, 2013) (citing Gieg v. DDR,Inc., 407 F.3d 1038, 1047 (9th Cir. 2005)); 29 C.F.R. § 779.313. Section 13(a)(2) defines a "retail or service establishment" as one in which 75% of the annual dollar volume of sales of goods or services is "not for resale" and "is recognized as retail sales or services in the particular industry."
"Where an employee performs work that simultaneously benefits more than one employer, the concept of 'joint employment' imposes individual and joint FLSA liability on all employers." Parker v. ABC Debt Relief, Ltd. Co., 2013 WL 371573, *4 (N.D. Tex. Jan. 28, 2013) (citing 29 C.F.R. § 791.2(a)). To determine whether joint employment exists, the court considers the totality of the circumstances, "focusing on the economic realities of the particular employment relationship."
Whether an individual is an "employer" is a question of law. Castillo v. Givens, 704 F.2d 181, 187 n.12 (5th Cir. 1983), cert. denied 464 U.S. 850; Parker v. ABC Debt Relief, Ltd., 3:10-CV-1332-P, 2013 U.S. Dist. LEXIS 12859, at *9 (N.D. Tex. Jan. 28, 2013); Trevino v. UPS, No. 3:08-CV-889-B, 2009 U.S. Dist. LEXIS 92416, at *14 (N.D. Tex. Oct. 5, 2009). In disputing that it is Plaintiff's employer, Defendant's Motion merely states that "FFE did not employ him and therefore was not Coleman's 'employer.'"
"The question of whether a defendant is an employer under the FLSA is a mixed question of law and fact, with the existence and degree of each relevant factor lending itself to factual determinations." Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 393 (E.D.N.Y. 2012); see also Parker v. ABC Debt Relief, Ltd. Co., Civ. Action No. 3:10-CV-1332-P, 2013 WL 371573, at *3 (N.D. Tex. Jan. 28, 2013) (noting the determination is a question of law where the material facts are undisputed). Before the Court are two affidavits.