As we have written before the outside sales exemption is arguably one of the more straight-forward FLSA exemptions, having only two requirements: 1) having as the primary duty making sales or obtaining orders; and 2) doing so away from the employer’s place or places of business “customarily and regularly.” Nevertheless, this simple test can be the subject of contested litigation. A recent decision upholds the applicability of the exemption to a salary paid worker for a restoration and cleaning firm. Dooley v. CPR Restoration & Cleaning Servs. LLC, 2014 U.S. App. LEXIS 20918 (3d Cir. Oct. 29, 2014).
Dooley’s primary duty was to monitor a scanner and proceed to the location of fires in order to sell his employer’s services to the affected property owner, including offering “board-up” services as a “loss leader” in hopes of obtaining further, profitable work. Speed was of the essence in order to be the first one on location once the fire department permitted civilian personnel to the site. Plaintiff admitted that the boarding up services he offered (sometimes with agreement to pay the homeowner’s insurance deductible, which he was free to offer), did not make money for the company, but were part of an effort to secure more lucrative work. The court concluded that Plaintiff’s “task of monitoring fire reports was to further CPR’s sales goals and these exempt duties were more important than his non-exempt duties.”
Under recent Supreme Court precedent, employers must apply the outside sales exemption by reference to the sales process prevalent in their industry, mindful of the general FLSA standard and state law tangents.