In House Salesman-- exempt?

ultrasun · May 2005

Query: Is an in-house salesman who works on a commission-only basis, with a draw each week,to be charged against commissions later earned ( draw equal to Minimum Wage if commisions that week don't exceed $250) but who will earn on a annual basis more than $50,000, considered exempt? Each week the salesman is required to be at the Company showroom in excess of 50 hours and perform basic duties of displaying and storing the products for sale. ( Employee participates in Medical, Matching Pension, and other Company pLans.)
Thanks for your comments.

pork1 · May 2005

ULTRASUN: Based on your post and "the company required to be ar the company showroom in excess of 50 hours and perform basic duties of displaying and storing products for sale" does not read to me as the current standard test for an "outside sales position" and an EXEMPT status under the FLSA. It reads like and the physical actions of the ee while working, indicate you have an inside sales person, which would not be normally EXEMPT that person from the appropriate receipt of overtime payment for all hours worked over 40 hours.

You may just have a mis-classification of this position. If that be the case, someone needs to document the physical activities of this person for the job task performed in a physical sense. The primary duty of an outside sales person is the making of sales, customarily and regularly engaged away from the employer's place or places of business.

The old standard test was a 20% of time devoted to "basic duties of merchandising" a sells product. That has been dropped and replaced with the "engaged away from the er place of business".

I hope this helps you sort through your issues, it must be done or the risk for damages can get tuff with a simple phone call to the Friendly Wage and Hour folks.

PORK

flaroyale · May 2005

Inside sales does not qualify for overtime exemption however depending what type of business you are in you may qualify for the exemption under section 7(i), which is an exemption for retail establishments. There are a few qualifications you must meet to qualify for the exemption, one being the employee must make a minimum of time and 1/2 for every hour worked. Another requirement is being a true retail business. You can read more about the exemption on the DOL website. Fact Sheet #20, under Wage and Hour compliance. It is also on Page 11 of the FLSA.

In House Salesman-- exempt?

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