Is the saying “fish or cut bait” dead?

If you are ever in need of sleep, pull out your copy of the U.S. Code and traipse through the exemptions contained in section 13 of the FLSA, 29 U.S.C. § 213. We’re all familiar with the so-called white-collar exemptions for administrative, executive, and professional employees, as well as outside salespeople. Other exemptions exist for railroads, airlines, and certain interstate motor carriers. Still more exist for radio announcers, certain employees in small towns and movie theaters, and in some cases employees in orphanages. While there is currently a flood of litigation regarding the most common exemptions, litigation involving the less well-known exemptions is relatively rare.

In Barks v. Silver Bait, LLC, Case No. 15-5175 (6th Cir. Oct. 2, 2015), the Sixth Circuit took up the novel question of whether a farm for worms used primarily as bait fell within the definition of “agriculture,” thus exempting the operation from the FLSA’s requirements. The district court certified a collective class of 11 workers claiming overtime and, following a bench trial, concluded that the worm farm was indeed an exempt agricultural enterprise.

The Sixth Circuit’s opinion goes into a fair amount of detail regarding how worms are raised for bait, but the end result was that while worms were not a traditional farm product like cattle or vegetables, they were indeed agriculture “products” in that they were animals (irrespective of phylum) raised in a farm environment. In making that finding, the court also had to construe FLSA exemptions for fish farms, as well as regulatory guidance on everything from bees to albino rodents.

So why is this case important, and why did it warrant a published opinion from a federal court of appeals? The answer is that the case is a reminder that the FLSA contains a host of partial and complete exemptions across a wide variety of industries. While much of the law concerning these exemptions is settled, rarely litigated, or both, these issues may still crop up (pun intended) to dictate a judgment in the employer’s favor. As the Barks case also reflects, changes in the way even something as simple as bait are made may move a business either into or out from under an FLSA exemption.

The bottom line: The FLSA’s warren of exemptions may come into play in unexpected ways, even in class or collective litigation.