An employee for an automotive and truck parts company is an exempt outside salesperson under the FLSA and the New York Labor Law, despite allegations that he was only a service technician, the Court for the Eastern District of New York rules. Domenech v. Parts Auth., Inc., 2015 U.S. Dist. LEXIS 101214 (E.D.N.Y. Aug. 3, 2015).

Because the parties did not dispute the plaintiff customarily and regularly worked away from the office (one prong of the two-pronged exemption test for the outside sales exemption), the court focused on the other prong of the exemption: whether the plaintiff’s “primary duty” was to make “sales.” Although the plaintiff claimed his customer visits were in the capacity of a technician, the court found his admissions in deposition testimony that he worked in sales, and his entries in the employer’s sales management system, “highly probative” of the issue of his sales employee status. The Court found that “[p]laintiff clearly functioned as a salesperson, albeit one whose technical expertise informed his sales.” The court discounted plaintiff’s reliance on his responsibility for installation of automotive lifts, finding that such was not integral to his duties as a salesman and, overall, was a minor responsibility. The court further found that the plaintiff’s freedom from direct supervision – including the fact that he spent most of his time driving, at times would not return to the office after his customer visits, and had the discretion to determine when to visit customers within a certain time period – weighed in favor of finding that his outside sales duties were his primary ones.

Applicability of the outside sales exemption, made notorious through a decade-long dispute regarding pharmaceutical sales representatives, must focus on both aspects of the legal test: performance of sales duties, and “customary and regular” sales activity away from the employer’s place of business. State law considerations also must be reviewed.