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.

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Photo of Noel P. Tripp Noel P. Tripp

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate…

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate in May 2005, he has practiced exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principle focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws.

Mr. Tripp is a graduate of Dartmouth College (A.B. 1999), and Fordham Law School (J.D. 2006). Prior to attending law school, Mr. Tripp was a complex commercial litigation paralegal at a large national law firm in Los Angeles, California. He is admitted to practice in the state of New York.

Education

  • Fordham University, J.D., 2006
  • Dartmouth College, A.B., 1999

Admitted to Practice

  • New York, 2007
  • New York – E.D. N.Y., 2008
  • New York – S.D. N.Y., 2008