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Overtime Exemptions for Outside Sales Persons

Both state laws and federal laws protect employees by requiring employers to pay their employees at least time and a half for all overtime that is worked. Overtime is any time worked over 40 hours in one work week. Outside sales people are exempt from these overtime requirements; thus, employers do not have to pay them overtime.

However, employers often misclassify employees as exempt from overtime and fail to pay overtime to their employees even though it is legally required. This may be due to ignorance on the part of the employer or because the employer is intentionally misclassifying the employee to save money. Despite the reason, employers who fail to pay their employees the legally required overtime pay can be required to pay fines and back pay due to their employees.

If you have been misclassified as an outside sales person, you may be due overtime back pay. At the Bayless Law Firm, attorney Kay Bayless applies her years of experience in West Virginia labor and employment law to help workers who have been denied overtime recover back wages and other monetary damages that may be available to them. Contact Kay Bayless today to find out if you are being unfairly denied wages that you are entitled to.

Who is an Outside Employee?

The Fair Labor Standards Act (FLSA) exempts certain classifications of employees from the rules that require employers to pay the employee overtime. One class of employees who are exempt are “outside sales persons.” The actual duties carried out by the employee are what determine the classification of an employee. In order to be classified as an outside sales person and qualify for the exemption, the primary job duty of the employee must be:

  • Making Sales
  • Obtaining Contracts: this is someone who contacts potential clients in order to get a contract for the services or agreements for renting out facilities owned or operated by their employer.
  • Works Outside the Office: the employee usually and regularly operates outside of the employer’s office or place of business.

Promotional Work

Promotional work may or may not qualify as outside sales work depending on the circumstances. If it is work that is a part of the employee’s own outside sales work, it is most likely exempt work. However, if the promotional work is done as a part of an employee’s work that is not in conjunction with or related to making a sale outside the primary place of business, it may be work that should qualify for overtime pay. According to federal regulations, promotional work may be work that is exempt from overtime pay if the promotional work “is actually performed incidental to and in conjunction with an employee’s own outside sales or solicitations.” The determination of whether promotional work is exempt is determined on a case-by-case basis. Contact attorney Kay Bayless for help today.

Delivery Drivers

Delivery drivers may be exempt from overtime as outside sales persons if their primary duty is to make sales, and delivering the product is more of an incidental activity to the sales they are making. There are several factors that determine if a driver is exempt. These include: comparing the driver’s duties with that of other drivers and salespersons; contractual requirements requiring particular amounts of product to be delivered; whether the driver has licenses for sales that are required by law; and other factors.

Pharmaceutical Sales Representatives

On June 18, 2012, the Supreme Court ruled, in Christopher v. SmithKline Beecham Corp., that pharmaceutical sales representatives satisfy the Fair Labor Standards Act’s (FLSA) outside sales person definition. The court held that pharmaceutical sale representatives are the only employees that the pharmaceutical company has to go out to doctors and “sell” their drugs to them by getting the doctors to agree to prescribe the drugs.

Salary Basis Test Does not Apply to Outside Sales Persons Exemption

The “salary basis test” is something that is used in other classifications of exempt employees. The test looks to see what the weekly compensation is of the employee to determine if they are truly exempt from overtime pay. However, this test is not used in determining if the employee is exempt from overtime. It does not matter how much or how little an outside sales person makes; they may still be exempt from being paid overtime as long as their primary work is making sales or obtaining contracts outside the business place of the employer.

Get Help Today From an Experienced West Virginia Attorney

Are you receiving all of the pay to which you are entitled? If you believe you have been misclassified as an exempt employee, contact the Bayless Law Firm for a free consultation. You may be entitled to recover several years’ worth of unpaid overtime. However, if you wait too long, your right to recover unpaid wages may be lost. Contact attorney Kay Bayless online or call (800) 359-2356 to find out whether you are being paid fairly or not.

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