Takeaway: This case represents a victory for employers with employees whose primary duty involves convincing buyers to commit to a sale, even if the employee does not finalize the sale themselves.
Nonetheless, when classifying employees as exempt, employers should remember that differences in the facts might result in a different outcome. For example, a court may not interpret another brand representative's activities as "making sales" if that employee is not "the last person to make an actual sales effort."
Employers should also remember that to qualify for an overtime exemption, the employee must meet all aspects of the test for that exemption. For example, under the outside sales exemption, it is not sufficient that the employee is "making sales." "Making sales" must be the employee's "primary duty."
In addition, employers must ensure that they comply with applicable state laws and with any differing interpretations of the FLSA's outside sales exemption by federal courts in other applicable jurisdictions.
The Fair Labor Standards Act (FLSA) did not require a marketing company to pay overtime to brand representatives because their product pitches to customers in retail stores qualified them for the outside sales exemption, the 1st U.S. Circuit Court of Appeals ruled.
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