Most people assume that if they work more than 40 hours a week, they are entitled to overtime pay. In some cases, this is true; however, there are various overtime exemptions under the Fair Labor Standards Act (FLSA). Learn more about the overtime rule on salary for exempt outside sales employees in North Carolina and whether it affects you.
What is an exempt employee?
Exempt employees are not eligible for overtime; non-exempt employees are. To qualify as exempt, your position must fall into one of the following categories:
- Executive: Positions that involve work related to supervising two or more full-time employees. Employees that fall into this category will likely have the power to hire, promote, and fire other employees.
- Administrative: Positions that contribute to the management or general business operations of the company. These employees must also make their own decisions with regards to significant issues in the workplace.
- Professional: Positions that require advanced knowledge in a creative, scientific, or learning field.
Generally, positions that fall into these categories meet these three criteria:
- Salaried, i.e., paid the same amount each pay period
- Earn more than $455 per week/$23,660 a year
- Perform job duties specified in each category, e.g., executive, administrative, professional
However, not all exempt employees fall into the three categories listed above. Other exempt positions have different requirements. For example, the outside sales exemption has a unique set of requirements that employees must meet in order to qualify as exempt.
Outside Sales Exemption
Salespeople are an integral part of the success of a business. Outside salespeople generally control their own schedules and travel away from their offices to drum up business. Supervision is limited, as outside sales essentially requires you to be your own boss. However, outside sales can be unpredictable, which is why the salary requirements for other exempt professions do not apply to outside sales employees. Instead, outside salespeople must meet a different set of criteria.
In order to qualify under the outside sales exemption, an employee must:
Be involved in making sales: In order to be exempt, the employee must engage in the act of selling, obtaining orders, obtaining service contracts, or obtaining shipment for sale. These acts must be a “primary duty.”
Customarily and regularly working outside of the office: Exempt outside sales employees must conduct business away from the employer’s place of business (e.g., the customer’s place of work or door-to-door sales). Sales made by mail, phone, or internet do not typically qualify as outside sales.
Customarily and regularly means that the employee conducts sales business more than occasionally but not constantly.
Employees who have an office at their place of work but leave to meet with clients on occasion are likely non-exempt.
Note: “Primary duty” means the “principal, main, major, or most important duty that the employee performs.”
To determine if you are an outside sales employee, consider the duties of your position. Do you make your own schedule or do you have a typical 9-5? Does your employer supervise you? Is your workplace different each day or do you head to the office? Are you constantly on the run meeting clients or do you only leave once a month to check in on clients?
If you make your own schedule, supervise yourself, have a different “workplace” each day, and if you are constantly driving around meeting with clients or making sales, you are likely exempt. If you work 9-5 in an office and check in on your clients occasionally in person, you are likely non-exempt.
Do drivers count as outside sales employees?
In some cases, drivers who deliver and sell products may qualify under this exemption. Making sales must be a significant part of the driver’s job.
To determine whether you qualify, compare your position to other drivers and other salespersons. Do you work with sales contracts? Do you have a sales license? How does your employer define you on your contract? If you engage in numerous sales-based job duties, you may qualify as exempt.
Phil Gibbons, Charlotte, NC employee rights lawyer, can help outside sales employees recover unpaid overtime.
The FLSA protects non-exempt employees from receiving less than they deserve for the hours they work. However, due to the misclassification of employees or the refusal of employers to pay overtime, many employees do not receive the overtime pay they are entitled to. Gibbons Leis, PLLC has helped numerous employees recover their rightfully earned wages from their employer. We can help you too.
After carefully evaluating your case, we will determine your exempt status. If we determine that your employer misclassified you, we will calculate how much your employer owes you in overtime pay and help file a claim against him/her for damages. In addition to back pay for the overtime hours you worked, you may be able to recover additional liquidated damages. These liquidated damages typically equal two times the amount of back pay owed.
Do not allow your employer to take advantage of you. Make sure s/he pays you what you deserve by speaking to a Charlotte overtime misclassification attorney at Gibbons Leis, PLLC at 704-612-0038 for a free consultation.