Because most FLSA exemptions are affirmative defenses, their applicability is not often established by the Plaintiff’s Complaint, of which s/he is “master” and can shape to avoid addressing exemption-triggering duties. There are exceptions. In a recent opinion, a Manhattan federal district judge ruled that a commissioned salesman who traveled from his home office to conduct jewelry sales at customers’ places of business qualified as an exempt outside salesperson under the FLSA and New York Labor Law based on his own Complaint’s allegations. Cangelosi v. Gabriel Bros, Inc., 15-cv-3736 (JMF), 2015 U.S. Dist. LEXIS 140579 (S.D.N.Y. Oct. 15, 2015).

To be an exempt outside salesperson, an employee’s primary duty must be to make sales and the employee must be “customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty.” The parties disputed both whether the plaintiff customarily and regularly worked away from the employer’s place of business, here, plaintiff’s home office, and whether the plaintiff’s “primary duty” was to make “sales.” Although the plaintiff claimed that much of his time spent working was “on tasks other than making sales,” such as creating sales reports and travel itineraries, the court found that these “other” tasks all related to his primary duty of selling jewelry, with the vast majority of them being “plainly performed incidental to and in conjunction with’ Plaintiff’s sales efforts and thus qualified as exempt outside sales work.” The court further found that the plaintiff was “customarily and regularly engaged” away from the employer’s place of business (in this case, the plaintiff’s home office) because “the Amended Complaint makes plain — and there is no dispute — that he conducted sales at customers’ places of business with ‘a frequency . . . greater than occasional,’” the standard applicable under the DOL regulation defining “customarily and regularly.” Thus, Plaintiff’s Complaint established his exempt status.

Applicability of the outside sales exemption, made notorious through a decade-long wave of litigation involving pharmaceutical sales representatives, must focus on both aspects of the legal test: performance of sales-related duties, and “customary and regular” sales activity away from the employer’s place of business. Applicability of exemption defenses – and the proper juncture in litigation to invoke them – must be analyzed in all FLSA cases.