AFSA Extra Credit Podcast: Auto Remote Sales Compliance
Representing Commission Salespeople
We frequently encounter situations where employers classify their salesforce that primarily sells through telephone and internet means as salaried exempt employees, primarily for purposes of overtime and minimum wage payment...more
On May 13, 2024, the New Jersey Supreme Court in Kennedy, II v. Weichert Co., (A-48/49-22) (No. 087975), N.J. (slip op.) held real estate salespersons to be independent contractors under certain circumstances. Specifically,...more
The U.S. Supreme Court next term will address the standard of proof that employers must meet to show an employee is exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). E.M.D. Sales,...more
On May 13, 2024, the New Jersey Supreme Court issued its decision in a class action lawsuit known as James Kennedy, II v. Weichert Co., conclusively finding that for the purpose of determining whether a real estate...more
We previously wrote about the procuring-cause doctrine here. As a refresher, the procuring-cause doctrine provides that a salesperson or other agent who contracts for a commission becomes entitled to payment of the commission...more
Now is the time to review overtime exemptions and pay plans for sales employees to be ready for 2024. The changing tech economy has created a class of sales employees who may not fit traditional overtime exemptions. Moreover,...more
Psychologist Abraham Maslow once observed, “If the only tool you have is a hammer, it is tempting to treat everything as if it were a nail.” That sums up the state of commission litigation under the Massachusetts Wage Act:...more
In September 2022, Ford rolled out its “Model e Program” establishing requirements for Ford dealers who choose to sell and service Ford electric vehicles (“EVs”) after December 31, 2023. The Model e Program replaced Ford’s...more
Until recently, employers had the luxury of interpreting the outside salesperson exemption to minimum wage, overtime and meal and rest period requirements at face value. This is because the definition of an “outside...more
It is well-known that California law is often more strict than federal law. Just as California handles overtime differently than the federal Fair Labor Standards Act (FLSA), California law also treats aspects of overtime...more
Demand for legal services is materially down after a few extremely flush years, according to a recent “state of the legal marketplace” presentation at Thomson Reuters’s Marketing Partner Forum (MPF). At cash businesses such...more
In a recently published appellate division decision, Kennedy v. Weichert Co., a New Jersey court addressed the issue of classification of commissioned real estate salespeople as independent contractors. The court ruled that...more
Seyfarth Synopsis: Baylor Miraca Genetics Laboratories, LLC (“BMGL”) is in the genetic test business. BMGL sells its tests to its “channel partners,” who in return test specimens ordered by physicians. Brandon Perthuis became...more
Many companies do not formalize commission arrangements with sales representatives in a formal contract. They shake hands, they have a custom of paying a certain rate for several years, or they agree in a series of emails and...more
A Federal Appeals Court recently ruled that marketers who hand out samples and promote products qualify as outside salespeople under the Fair Labor Standards Act (“FLSA”), and are thus exempt from the overtime provisions of...more
Who doesn’t like free samples when shopping? But are the representatives providing those samples actually “selling” them so that they are exempt from overtime under the Fair Labor Standards Act (FLSA) as outside salespersons?...more
The PA Supreme Court has extended the Workers’ Comp application of the “traveling employee” doctrine to include an employee’s attendance at happy hours, holiday parties and other social gatherings that are sponsored by the...more
I have handled many commission cases, where someone sues, claiming they are owed commissions. The key issue in such cases is to determine if there is a written contract and then to ascertain what the vesting provisions for...more
Until now, having a reduction-in-force in the sales department of a retail automotive dealership was about as rare as selling vehicles at MSRP. Thanks to a combination of factors, including the pandemic and the chip shortage,...more
Another administrative exemption case, this time in the trucking industry, tests the contours of that vague, nuanced exemption and to what occupations it applies. In this case, a group of Logistics Coordinators contend they...more
California requires implicit bias training for brokers and salespersons in the real estate industry. Now, legislation pending in New York and South Carolina could be going in the same direction. On September 28, 2019,...more
Governor Newsom has signed Assembly Bill 1561 (AB 1561) to extend the sunset dates on the exemptions granted to licensed manicurists and construction trucking subcontractors from the provisions of Assembly Bill 5 (AB 5). AB 5...more
In the typical non-compete lawsuit, an employer seeks to block the defendant, often an ex-sales representative, from calling on or doing business with the company’s clients. However, in some cases, the defendant succeeds in...more
Q: Are outside sales employees considered exempt under the outside sales exemption (OSE) if they work from a home office during the pandemic? ...more
Introduction - For only the second time in 27 years, this publication places two annual trends in a tie for first place. Both the Coronavirus pandemic and the now completed 2020 election cycle will predictably have the...more