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Compliance Assistance Resources

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- FLSA Overtime Security Advisor

Outside Sales Employees

Before beginning to analyze whether a particular employee meets the duties tests for exemption as an outside sales employee, please review the following critical definitions:

Primary duty means the principal, main, major or most important duty that the employee performs. The determination of an employee's primary duty must be based on all of the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. While time is not the sole test, as a guideline, an employee who spends more than 50 percent of his or her time performing a specific activity can generally be said to have that specific activity as his or her primary duty. If the employee spends less than 50 percent of his or her time performing his or her major or most important duty, the employee may still meet the primary duty requirement if other factors support that conclusion. Please review the definition of primary duty for further guidance on this requirement.

Making sales includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.

Obtaining orders or contracts for services or for the use of facilities includes the selling of time on radio or television, the solicitation of advertising for newspapers and other periodicals, and the solicitation of freight for railroads and other transportation agencies. The word "services" extends the exemption to employees who sell or take orders for a service. The actual performance of the services for the customer may be by someone other than the person taking the order.

When assessing the nature of the employee's job, is the employee's primary duty making sales or obtaining orders or contracts for services or for the use of facilities?