In a BLR webinar titled "Exempt or Nonexempt? How To Avoid the Misclassification Mistakes You Simply Can't Afford To Make," Roy P. Salins, Esq., discussed the criteria that must be met for an employee to qualify for the outside sales exemption.

The primary duty of employees who qualify for this exemption must be making sales or obtaining orders for contracts for the company's services or use of the company's facilities:

• The employee must consummate a sale with the customer (i.e., obtain commitment from the client to purchase the company's products or services)
• The 50-percent threshold includes work that furthers the employee's sales efforts (e.g., planning for sales calls, writing reports, updating materials, and attending sales conferences). An employee is not exempt if he or she engages only in promotional work (in support of sales).

Orders for "the use of facilities" include 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.

Promotional work that the employee does that is actually performed incidental to and in conjunction with an employee's own outside sales or solicitations is exempt work. However, promotional work that is incidental to sales made, or to be made, by someone else is not exempt outside sales work.

Perhaps the most important criteria to qualify for this exemption is that the employee customarily and regularly must work away from the employer's place of business. Sales must be made at customer's place of business (or home in the case of a door-to-door salesperson).

Note: There is no salary requirement for this exemption, because outside salespersons are typically paid on commission basis.

Roy P. Salins, Esq., is a senior associate Labor and Employment Practice Area of Vedder Price PC. Based out of the firm's New York office, Salins's practice includes all aspects of litigation in federal and state courts, administrative agencies, and in arbitrations before FINRA and the AAA. Salins also devotes a large part of his practice to counseling clients in all areas of labor and employment law, compliance with federal and state nondiscrimination and wage statutes, and issues relating to reduction in force, employee compensation, benefits, staffing, hiring, discipline and discharge. He can be contacted at rsalins@vedderprice.com.