On June 25, 2020, the U.S. Department of Labor (DOL) issued two opinion letters concerning the exemption of outside salespeople. In FLSA2020-6, the DOL opined that an employee qualifies for the outside sales exemption when deployed to high-population areas and events to sell products via stylized trucks (which is not itself a “place of business” as it is not fixed location), stocked with merchandise, marketing displays and demonstration units. In this set of facts, the salesperson is deployed at least 4 days per week (80%) with the truck at different locations each day. The salesperson is responsible for event planning and inventory management (done in the other the 20% of time), and is paid a base salary plus commission based on their sales (which they make using tablets issued to them). Accordingly, the DOL found the salespersons’ primary duty is making sales customarily and regularly away from the employer’s place of business, and thus, the exemption is proper.
In FLSA-2020-8, the DOL issued an opinion regarding the overtime exemption for outside salespersons in various situations where they set up displays and perform demonstrations at retail locations (not owned by their employer). As the opinion is limited to a very specific, unique type of outside salesperson, it can be instructive for providing examples of when an employee qualifies for the exemption (but way too much to specifically blog about here!). In short, most of the examples for this type of salesperson was found to be exempt (working at home and garden shows, trade shows, and fairs). The exception/open question was when such employee is primarily located a a big-box third-party retailer, if they are obtaining commitments from customers and credited for those sales they are probably exempt; if not, they are merely promoting an employer’s product (versus selling) and probably not exempt.