U.S. Court of Appeals For the Seventh Circuit
Employment – FLSA – overtime
Window washers are exempt from the overtime provisions of the FLSA.
“Nowhere does the Department engage with the primary reason for treating CCS’s window washers as commission workers—their irregular work hours. Nowhere does it suggest that the window washers will be better off if paid overtime, which could induce the company to reduce its hourly wage (for that wage is far above the minimum wage). The Department seems obsessed with its incomplete, arbitrary, and essentially mindless catalog of sellers lacking ‘a retail concept’—a catalog that, to repeat, despite its inordinate length does not include window washing. The brief cites departmental regulations that attempt to define a ‘retail or service establishment’ by listing factors of dubious relevance, such as that ‘75 per centum of [its] annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry,’ 29 C.F.R. § 779.312, or that the establishment ‘serves the everyday needs of the community in which it is located.’ 29 C.F.R. § 779.318. We don’t see the connection between these criteria and the reasons for excusing certain employers from the overtime provision of the Fair Labor Standards Act. But nor does CCS fail to satisfy these criteria.”
13-3818 Alvarado v. Corporate Cleaning Services, Inc.
Appeal from the United States District Court for the Northern District of Illinois, Chang, J., Posner, J.