Under the Fair Labor Standards Act (FLSA), employers do not need to pay overtime to salespersons who are customarily and regularly engaged in making sales away from the employer's place of business.
These "outside salespersons" also may perform work not directly related to sales, such as writing reports or attending conferences, without forfeiting their exemption, as a new appeals court ruling illustrates.
In Reyes v. Goya Foods, 2013 U.S. App. LEXIS 24257 (11th Cir. 2013), an employee claimed he did not qualify for an overtime exemption because his primary duty was not making sales but rather restocking store shelves, cleaning inventory and rotating inventory.
Although the employee may have personally spent little time promoting his employer's products, his non-sales activities were made in furtherance of sales, the 11th Circuit Court of Appeals held.
The court cited an FLSA regulation, 29 C.F.R. 541.500, which states that "Other work that furthers the employee's sales efforts also shall be regarded as exempt work including, for example, writing sales reports, updating or revising the employee's sales or display catalogue, planning itineraries and attending sales conferences."
The fact that the employee was paid on a commission basis also supports the conclusion that he was an exempt outside salesperson, the court held, citing Gregory v. First Title of Am., Inc., 555 F.3d 1300, 1302 (11th Cir. 2009).
The court also cited the facts that the employee did not report to his employer's offices on a regular basis except to attend monthly sales meetings, worked with little supervision, and set his own schedule as evidence that he was an exempt outside salesperson.