[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR794.104]

[Page 746-747]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 794_PARTIAL OVERTIME EXEMPTION FOR EMPLOYEES OF WHOLESALE OR BULK 
 
Subpart B_Exemption From Overtime Pay Requirements Under Section 7(b)(3) 
                               of the Act
 
Sec. 794.104  Enterprises engaged in described distribution and in other 
activities.

    An enterprise may be engaged in the wholesale or bulk distribution 
of petroleum products, within the meaning of section 7(b)(3), without 
being exclusively so engaged. Such engagement may be only one of the 
several related activities, performed through unified operation or 
common control for a common business purpose, which constitute the 
enterprise (see Sec. 794.106) under section 3(r) of the Act. If 
engaging in such distribution is a regular and significant part of its 
business, an enterprise which meets the other tests for exception under 
section 7(b)(3) will be relieved of overtime pay obligations with 
respect to employment of its employees in such distribution activities, 
in accordance with the intended scope (see Sec. 794.101) of the 
exemption. The

[[Page 747]]

same will be true with respect to employment of its employees in those 
related activities which are customarily performed as an incident to or 
in conjunction with the wholesale or bulk distribution of petroleum 
products in the enterprises of the industry engaged in such 
distribution. There is no requirement that engaging in such activities 
constitute any particular percentage of the enterprises's business. 
However, in the case of an enterprise engaged in other activities as 
well as in the wholesale or bulk distribution of petroleum products 
(including related activities customarily performed in the enterprises 
of the industry as an incident thereto or in conjunction therewith), an 
employee employed in such other activities of the enterprise is not 
engaged in employment which the exemption was intended to reach (see 
Sec. 794.101). Such an employee is not brought within the exemption by 
virtue of the fact that the enterprise by which he is employed is 
engaged with other employees in the distribution activities described in 
section 7(b)(3). This accords with the judicial construction of other 
exemptions in the Act which are similarly worded. See Connecticut Co. v. 
Walling, 154 F. 2d 522, Certiorari denied, 329 U.S. 667; Northwest 
Airlines v. Jackson, 185 F. 2d 74; Davis v. Goodman Lumber Co., 133 F. 
2d 52; Fleming v. Swift & Co., 41 F. Supp. 825, aff'd 131 F. 2d 249.