Lorinser v. B & B Employment, No. 8664

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtERICKSTAD; STRUTZ
Citation190 N.W.2d 21
Docket NumberNo. 8664
Decision Date31 August 1971
Parties20 Wage & Hour Cas. (BN 284, 66 Lab.Cas. P 32,590 Claire LORINSER, Plaintiff and Appellant, v. B & B EMPLOYMENT, Defendant and Respondent. Civ.

Page 21

190 N.W.2d 21
20 Wage & Hour Cas. (BN 284, 66 Lab.Cas. P
32,590
Claire LORINSER, Plaintiff and Appellant,
v.
B & B EMPLOYMENT, Defendant and Respondent.
Civ. No. 8664.
Supreme Court of North Dakota.
Aug. 31, 1971.

Page 22

Syllabus by the Court

1. The interpretive rulings of the administrator of the Wage and Hour and Public Contracts Divisions of the United States Department of Labor as contained in the Federal Register, while not of a conclusive nature, are entitled to substantial weight.

2. Exemptions provided for in the Fair Labor Standards Act are to be narrowly construed against the employer seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.

3. For reasons stated in the opinion, an employment agency does not come within the exemption provisions of Section 213(a)(2), Title 29, U.S.C.A.

Harold A. Halgrimson, Fargo, and Garrity, Cahill, Gunhus, Streed & Grinnell, Moorhead, Minn., for plaintiff and appellant.

Solberg, Anderson & Stewart, Fargo, for defendant and respondent.

ERICKSTAD, Judge (on reassignment).

The plaintiff Claire Lorinser, whom we shall hereinafter refer to as Mrs. Lorinser, appeals from a judgment of the district court of Cass County, dated May 5, 1970, which dismissed her complaint against B & B Employment, Inc., which we shall hereinafter refer to as B & B company.

In the complaint, Mrs. Lorinser asserts, among other things, that she was an employee of B & B company from May 20, 1968, to October 4, 1968; that during that time she was paid at a rate lower than the federal minimum wage of $1.60 per hour, and that accordingly she is entitled to be paid $1200 as the unpaid portion of her minimum wage, and an additional $1200 as liquidated damages, together with reasonable attorney fees and costs. B & B company's main defense is that the complaint fails to state a claim upon which relief can be granted. Although it also asserted a counterclaim, it abandoned the counterclaim at the trial, so we shall not discuss the counterclaim.

The judgment appealed from resulted from a motion made by B & B company under Rule 41(b) of the North Dakota Rules of Civil Procedure, after both parties had rested and before the case was submitted to the jury, for a dismissal of the plaintiff's complaint upon the ground that B & B company is exempt from the minimum wage requirements of the federal law under Section 213(a)(1) and (a)(2) of Title 29, U.S.C.A.

The pertinent parts of that section of the Fair Labor Standards Act read:

'(a) The provisions of sections 206 and 207 of this title shall not apply with respect to--

Page 23

'(1) any employee employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the Administrative Procedure Act, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or

'(2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment--

'(iv) is in such an enterprise and has an annual dollar volume of sales (exclusive of excise taxes at the retail level which are separately stated) which is less than $250,000.

'A 'retail or service establishment' shall mean an establishment 75 per centum of whose 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;'

The court granted B & B company's motion, believing that it was exempt under § 213(a)(2). No serious argument was made in the lower court and none is made in our court that § 213(a)(1) applies.

The question for us to determine in this appeal is whether B & B company is a 'retail or service establishment' exempt under § 213(a)(2).

The pertinent part of Section 206, Title 29, U.S.C.A., reads:

'(a) Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:

'(1) not less than $1.40 an hour during the first year from the effective date of the Fair Labor Standards Amendments of 1966 and not less than $1.60 an hour thereafter, except as otherwise provided in this section:'

Mrs. Lorinser contends that in concluding as it did the trial court failed to give proper weight to the interpretive ruling of the administrator of the Wage and Hour and Public Contracts Divisions of the United States Department of Labor as contained in the Federal Register of October 17, 1967.

The pertinent part of the Register follows:

'Pursuant to the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), Reorganization Plan No. 6 of 1950 (3 CFR 1949--53 Comp., p. 1004), and Secretary's Order No. 16--67 dated July 21, 1967, I hereby amend 29 CFR Part 779 as set out below.

'The procedural and effective date requirements of Section 4 of the Administrative Procedure Act (5 U.S.C. 553) do not apply as this amendment is concerned solely with interpretive rules. I do not believe such procedure and delay will serve a useful purpose here. Accordingly, this amendment shall become effective upon publication...

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1 practice notes
  • Homemakers Home & Health Care Services, Inc. v. Carden, No. 74-1680
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 août 1976
    ...Brennan v. Great American Discount and Credit Company, Inc., 477 F.2d 292, 295 (C.A. 5, 1973); Lorinser v. B & B Employment, Inc., 190 N.W.2d 21 (S.Ct., N.D.1971); Mitchell v. Glader Corp., 13 W.H. Cases 51 (N.D.Del.1956); Schussler v. Employment Consultants, Inc., 333 F.Supp. 1387 (N.D.Ill......
1 cases
  • Homemakers Home & Health Care Services, Inc. v. Carden, No. 74-1680
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 17 août 1976
    ...Brennan v. Great American Discount and Credit Company, Inc., 477 F.2d 292, 295 (C.A. 5, 1973); Lorinser v. B & B Employment, Inc., 190 N.W.2d 21 (S.Ct., N.D.1971); Mitchell v. Glader Corp., 13 W.H. Cases 51 (N.D.Del.1956); Schussler v. Employment Consultants, Inc., 333 F.Supp. 1387 (N.D.Ill......

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