New FLSA Regulation Regarding Overtime Exemption in Retail or Service Establishments

On May 18, 2020, the U.S. Department of Labor (USDOL) withdrew two provisions from its Wage & Hour Division (WHD) regulations that listed industries considered to have “no retail concept” and as a result were ineligible for overtime exemption, and industries that “may be recognized as retail” and were only potentially eligible for exemption. The rule change affords establishments on the withdrawn non-retail list added flexibility regarding commission-based pay for their employees. The rule was issued without notice and comment, and took effect immediately.