How a typical employer in retail trade operates
A retailer is a business that receives goods from others and sells them to the public from a premises the public must enter. Every one of its functions happens at a place, at an hour, with a person, on an input that an order could reach, and between March 2020 and September 2021 every one of them was reached. The sales floor was closed, capped, cordoned, curfewed and placed under workplace infection-prevention and exposure-control conditions by order; the curbside channel was created by order as the only permitted mode of sale; the stockroom and distribution center were governed by distancing, screening and warehouse-closure orders; the supply chain was closed at the plant, the port and the border by order; the mall was closed by order around the store; the promotion and the event were barred by gathering caps; the hiring office was closed and the seasonal workforce was capped by occupancy; the headquarters and call center were sent home by telework mandates; the workforce was confined by school, child-care, quarantine and transit orders; and the customer base was ordered to stay home, quarantined on arrival, admitted only under the exposure-control conditions the orders attached to the door, the face covering among them, and kept from crossing the border. This section describes each function in the operational terms an order reaches, states the revenue lines, inputs, counterparties, workforce, seasonality and geography of the industry, and maps each counterparty class to the orders that reached it, with cross-references to the layers section below.
The industry in numbers
Retail trade is the sector defined by NAICS 44-45: motor-vehicle and parts dealers (treated on the Dealers and Repair Shops page), furniture and home furnishings, electronics and appliances, building materials and garden supply, food and beverage stores, health and personal-care stores, gasoline stations, clothing and accessories, sporting goods, hobby, book and music stores, general merchandise stores including department stores, warehouse clubs and supercenters, miscellaneous store retailers and non-store retailers. The Bureau of Labor Statistics counted 15,519,200 retail employees in February 2020, 13,246,900 in April 2020 and 15,280,100 in September 2021.1 The Census Bureau counted $403.9 billion of retail and food services sales in April 2020, a fall of 16.4 percent from March; $625.4 billion in September 2021; and an e-commerce share of 11.3 percent of total retail sales in the fourth quarter of 2019, 16.1 percent in the second quarter of 2020, 14.0 percent in the fourth quarter of 2020 and 13.0 percent in the third quarter of 2021.2 The National Retail Federation describes the sector as the nation's largest private-sector employer, supporting more than one in four United States jobs; that figure is a trade-association estimate and is cited as context only.3 The Census Bureau's Small Business Pulse Survey found in its first week, April 26 to May 2, 2020, that 51.4 percent of small businesses reported a large negative effect and 38.5 percent a moderate negative effect, and that supply-chain disruption was reported by 44.9 percent of all businesses and by 65.8 percent of retailers, the highest of any sector; in the week ending July 18, 2021, 59.8 percent of small retailers reported domestic supplier delays.4
SF, the sales floor
The sales floor is the premises open to the public: the door, the aisles, the fitting rooms, the checkout, the returns desk and the departments. It operates during posted hours, at a density the fire marshal's occupancy certificate permits, with customers who browse, try, queue and pay in person. An order reaches it by closing the door to the public (the non-essential closures of forty-three jurisdictions in March and April 2020), by fixing the number of customers who may stand inside (four per 1,000 square feet in Michigan and Wisconsin; five per 1,000 or 20 percent in South Carolina, North Carolina and Maine; one per 100 or 300 square feet in Rhode Island; 25 or 10 percent in Missouri; ten patrons in Virginia; one adult per household in Kentucky; 20, 25, 30, 33, 50, 60 and 75 percent by State and by phase), by cordoning departments inside an open store (Michigan's carpet, furniture, garden and paint areas), by fixing the hours (Ohio's 10:00 p.m. curfew; New Mexico's 10:00 p.m. closing; New Jersey's municipal evening curfews), by imposing workplace infection-prevention and exposure-control requirements on the open store, among them a face covering the retailer must enforce at its door beside the capacity and distancing conditions of the same orders (thirty-four States and the District by September 30, 2020; six States, the District of Columbia and dozens of cities and counties again in the third quarter of 2021, with Hawaii's never lifted), by closing fitting rooms (Rhode Island) and by conditioning the right to be "open for business or operate" on compliance with a compliance unit's inspection (Ohio).5 The sales floor is where the great majority of retail revenue was earned before 2020; e-commerce was 11.3 percent of the whole in the fourth quarter of 2019.6
CU, curbside, pickup and online fulfillment
Curbside pickup, buy-online-pick-up-in-store and home delivery are the channels the orders left open when they closed the door. In the curbside-only periods (Vermont from April 20, 2020; Texas from April 24; Colorado from April 27; Illinois May 1 to 29; Nevada, New Mexico and Mississippi from May 1; Arizona May 4 to 8; Minnesota May 4 to 17; California and Delaware from May 8; New Jersey May 18 to June 15; Massachusetts May 25 to June 8; the District May 29 to June 22) the order fixed the channel as the only permitted mode of sale, fixed its mechanics (telephone and online orders only; pickup outside the store; one employee on site in New York; five customers at a time in Wisconsin from May 11) and thereby converted a business built on the sales floor into one confined to a channel that had carried one-ninth of its sales before the closures.7 A compelled channel is a compelled modification; the Notice's own Example 6 to Q&A-17 describes "Employer J, a large retailer," permitted only "curbside service to pick up items ordered online or by phone," and finds its operations "partially suspended due to the governmental order."8
ST, receiving, stockroom, back-of-house and distribution
Goods arrive at a loading dock, are received, counted, stored and moved to the floor or shipped to the customer; a chain runs its own distribution centers and fulfillment warehouses. An order reaches the function by closing the warehouse (New Jersey's EO 122 capped warehousing and manufacturing at 50 percent occupancy from April 10, 2020 under exposure-control conditions that included face coverings and ten-person meeting caps; Pennsylvania's life-sustaining list closed non-food warehousing and durable-goods distribution from March 19, 2020; New York's EO 202.8 reduced every non-essential in-person workforce to zero, warehouse workers included), by fixing distancing, screening, masking and sanitation duties inside it (Pennsylvania's Worker Safety Order of April 15, 2020; New Jersey's EO 192 from November 5, 2020; Michigan's MIOSHA emergency rules from October 14, 2020; the Cal/OSHA emergency standard from November 30, 2020; Virginia's, Oregon's and Washington's standards), and by targeting it for programmed federal inspection (OSHA's National Emphasis Program of March 12 and July 7, 2021, which names supermarkets and other grocery stores, department stores, and warehouse clubs and supercenters).9
SC, supply chain and imports
Inventory is bought months ahead from domestic manufacturers and importers, from foreign factories, and through wholesalers and distributors; it moves by ocean carrier through the Ports of Los Angeles and Long Beach and the Atlantic and Gulf ports, by truck across the Canadian and Mexican borders, and by parcel carrier to the store and the customer. An order reaches the function at the plant (Michigan's EO 2020-21 and 2020-42 closed non-essential manufacturing March 24 to May 11, 2020; Pennsylvania's closure orders shut durable-goods manufacturing and non-food warehousing from March 19; New York, New Jersey, Washington and the California counties closed or capped plants in the spring of 2020), at the border (the Department of Homeland Security's land-border notices prohibited non-essential travel from 11:59 p.m. March 20, 2020 through November 8, 2021, renewed monthly), at the port of entry (the presidential entry proclamations from January 31, 2020 through November 8, 2021; the CDC's inbound-testing order from January 26, 2021), in the allocation of goods (the Defense Production Act orders of March 2020; FEMA's export rule on five categories of personal protective equipment from April 7, 2020 to June 30, 2021; the HHS scarce-materials designation from March 25, 2020 to November 15, 2021, which forbade any retailer to accumulate designated goods or resell them above prevailing prices), and at the port itself (the CDC and Captain of the Port orders governing crews and terminals, described in the Coast Guard's Marine Safety Information Bulletins; the Federal Maritime Commission's Fact Finding 29 supplemental order of November 2020 and its record through July 2021).10 Foreign governments' factory and port closures (China in February and March 2020; India from March 25, 2020; Mexico from March 30, 2020; Malaysia's Movement Control Orders in 2020 and from June 1 to August 15, 2021; Vietnam's Ho Chi Minh City lockdown from July 9 to September 30, 2021; the Ningbo-Zhoushan Meishan terminal closure of August 11 to 25, 2021) are the facts and circumstances in which the United States' border, entry and allocation instruments operated; they are cited as such and not as orders of an appropriate governmental authority.11
ML, malls, landlords and premises
A retailer occupies a leased premises in a strip center, a lifestyle center or an enclosed mall, under a lease with percentage-rent and co-tenancy clauses that turn on the mall's being open and its anchors trading. An order reaches the function by closing the mall itself, separately from and earlier than the stores inside it (Connecticut's ten large malls at 8:00 p.m. March 19, 2020; New York's enclosed malls over 100,000 square feet at 8:00 p.m. March 19; Maryland's malls at 5:00 p.m. March 19; New Jersey's indoor malls March 21; Louisiana's malls March 23; Oregon's and West Virginia's March 24; Iowa's and Delaware's April 7), by reopening it last and conditionally (Louisiana at 25 percent with common areas closed May 15, 2020; Indiana's common areas at 25 then 50 percent; Minnesota's at 50 percent; New York's upstate malls July 10, 2020 with HVAC filtration conditions and New York City's September 9, 2020; New Jersey's every retail premises, indoor or outdoor, at 50 percent under EO 157 ¶ 1, operative on its issuance June 26, 2020), by closing food courts and play areas inside it (Texas GA-18 from May 1, 2020; Washington's Proclamation 20-25.8 from November 17, 2020; New Jersey's mall play areas to May 28, 2021), by halting store build-outs and remodels under construction shutdowns (New Jersey April 10 to May 18, 2020; Pennsylvania; New York; Michigan; Washington; Massachusetts; Vermont), and by staying commercial evictions (New York to August 31, 2021 and then to January 15, 2022; California's local authority to September 30, 2021; Washington's bridge to September 30, 2021).12
MK, promotions, events and demonstrations
Retail marketing is executed on the floor and in the community: product launches, signings, demonstrations, tastings, holiday events, sidewalk sales, trade shows and buying markets. An order reaches the function by capping gatherings (ten, twenty-five, fifty or a percentage in every State from March 2020 through the spring of 2021), by closing convention centers and trade-show venues, by barring the advertising of non-essential goods (Michigan's EO 2020-42 from April 13, 2020) and, in the third quarter of 2021, by conditioning large events on the airborne-transmission controls of masking or proof of vaccination (Nevada's Directives 049 and 050; New York City's Key to NYC; San Francisco's and New Orleans's venue rules; Los Angeles County's and Pasadena's mega-event orders).13
HR, hiring, screening and training
Retail hires continuously and seasonally, fingerprints and licenses for certain categories (alcohol, tobacco, firearms, pharmacy), and trains on the floor. An order reaches the function by closing the offices through which licensing and identity verification run (motor-vehicle, recorder and licensing offices closed or appointment-only from March 2020), by fixing the number of people who may be on the floor at once (which fixes the number who may be trained there), by requiring written mitigation plans, screening, training and record-keeping of every employee (the State workplace standards; the Ohio compliance order; the Minnesota Preparedness Plan mandate), and by requiring paid leave for quarantined and school-closed employees (the FFCRA mandate of April 1 to December 31, 2020; New York's Chapter 25 of 2020; Colorado's HELP rules and the Healthy Families and Workplaces Act).14
OP, headquarters, buying offices and call centers
The corporate office, the buying office, the e-commerce operation and the customer-service center are office functions. An order reaches them by telework mandate (New York's EO 202.6 and 202.8; New Jersey's EO 107 telework directive to June 4, 2021; Pennsylvania's "unless impossible" rule from November 23, 2020 to April 4, 2021; Oregon's "Work in offices is prohibited whenever telework and work-at-home options are available"; California's office closures in the Purple tier; Washington's and Minnesota's mandates), by office capacity caps (Connecticut 50 percent; Massachusetts 25 percent from December 26, 2020; Rhode Island 33 percent on site) and by the federal workplace rules that governed every retailer's dealings with the federal government as customer and regulator.15
WF, workforce availability
The retail workforce is hourly, part-time and shift-based; it is young and disproportionately female; it commutes by transit in the major metropolitan areas; and it has school-age children in large proportion. An order reaches the function by closing every school in the country (the last State closed by March 25, 2020; forty-eight States for the rest of the year), by confining child care to essential workers' children, by ordering exposed and infected persons into quarantine and isolation, by placing every conveyance under federal airborne-transmission controls, masks among them, from February 1, 2021, and, in the 2021-22 school year, by imposing masking and quarantine controls on students and closing classrooms in more than twenty States.16
CB, the customer base
A retailer's customers are the residents of its trade area and the travelers who pass through it. An order reaches the function by confining the residents to their homes (the stay-at-home orders of forty-two States and territories covering 2,355 counties by May 31, 2020), by quarantining arriving travelers (New York's EO 205 and the tri-State list; Hawaii's Safe Travels; Alaska; New Mexico; Chicago's Emergency Travel Order), by closing the border to the cross-border shopper (the DHS land-border notices), by suspending the entry of foreign visitors (the presidential proclamations), by conditioning entry to the store on the exposure-control requirements the reopening orders attached to it, the face covering among them, and by fixing the prices at which designated goods could be sold (the HHS designation; California's Penal Code § 396 orders to September 4, 2021; the price-caps of Minnesota, Michigan, New York, Colorado, Maryland and Massachusetts).17
Revenue lines
In-store sales are the principal line; e-commerce and pickup are the second; services (repair, installation, pharmacy, optical, photo, in-store clinics) the third; gift cards and financing the fourth; and, for owner-occupied centers, rental income. Every line but the second depended on the door being open, and the second was one-ninth of the whole before the closures and one-sixth only at their height.18
The retailer's counterparties are its manufacturers and importers; its wholesalers and distributors; the ocean, air, rail, truck and parcel carriers and the ports; its landlord and mall operator; its bank, card network and payment processor; its marketing agencies and event venues; its staffing agencies; the schools and child-care providers on which its workforce depends; the local health department and fire marshal that certify its occupancy; and the State alcohol, tobacco, firearms, pharmacy and weights-and-measures regulators that license what it sells.
Workforce, seasonality and geography
The workforce
Retail employment fell by 2,272,300 in March and April 2020, 14.6 percent of the February total, and had not returned to its February 2020 level by September 2021.19 The Bureau of Labor Statistics' Business Response Survey found that between July 20 and September 30, 2020, 52 percent of establishments told employees not to work, 19 percent experienced a government-mandated closure and 56 percent experienced a decrease in demand; in July 2021, 5.2 million persons "reported that they had been unable to work because their employer closed or lost business due to the pandemic," and in September 2021, 5.0 million.20
Seasonality
The November and December holiday season concentrates annual sales and seasonal hiring; the winter 2020-21 re-tightening took effect on November 16, 2020 in New Mexico and Ohio, November 17 in Washington, November 18 in Michigan, November 20 in Illinois and Maryland, November 25 in Louisiana, November 30 in Rhode Island, December 6 in Southern California, December 11 in North Carolina, December 12 in Pennsylvania, December 14 in Delaware and Kentucky, December 17 in the District and the Bay Area and December 26 in Massachusetts, which is to say on the industry's revenue peak in every case.21
Geography
Retail is everywhere; it follows population. The fifty-one jurisdictions' regimes therefore reached the industry in proportion to the population each governed, and the metropolitan orders of Los Angeles County, New York City, Chicago and Cook County, Philadelphia, Boston, the Bay Area, Seattle and King County, Dallas and Harris Counties, St. Louis and Kansas City reached the largest concentrations of stores. National chains operated under every one of those regimes at once; the Notice's Q&A-20 makes such a chain "an eligible employer nationwide" when its stores were closed to customers in some jurisdictions.22
The counterparty map
For each counterparty class, the table names the category of order that reached it and the passage of the layers section that inventories the instruments.
| Counterparty class | Orders that reached it | Layer |
|---|
| Customers (residents) | Stay-at-home and shelter-in-place orders; curfews; masked-entry and exposure-control orders; price and quantity limits | The fifty States; The largest metros; The sector regulators |
| Customers (travelers and cross-border shoppers) | Traveler-quarantine orders; land-border notices; entry proclamations; Hawaii Safe Travels | The federal layer; The counterparties; The interconnected economy |
| Domestic manufacturers and warehouses | Non-essential manufacturing and warehouse closures (MI, PA, NY, NJ, WA, CA); occupancy and protocol orders | The counterparties; The interconnected economy |
| Foreign factories and ports | United States border, entry and allocation instruments operating on foreign closures (context) | The interconnected economy |
| Carriers and ports | Conveyance order (airborne-transmission controls) and TSA directives; Coast Guard bulletins; FMC orders; FMCSA declarations (posture) | The federal layer; The sector regulators |
| Landlords and mall operators | Mall closure orders; common-area and food-court closures; construction shutdowns; commercial eviction stays | The fifty States; The largest metros; The counterparties |
| Event venues and convention centers | Gathering caps; venue closures; vaccination-proof conditions (Q3 2021) | The fifty States; The largest metros |
| Schools and child care (the workforce's dependents) | School closures; child-care emergency-only orders; 2021-22 masking and quarantine orders | The counterparties; The interconnected economy |
| Public offices and courts | Motor-vehicle, recorder and licensing closures; court administrative orders | The counterparties |
| Regulators (health, fire, labor, alcohol, weights and measures) | Occupancy conditions; workplace standards; compliance orders; price-gouging orders | The sector regulators |