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The Outside Sales Employee Exemption Under the FLSA

April 6, 2023 Worker Misclassification

What Is an “Outside Sales Employee” Anyway?

The Fair Labor Standards Act specifies that employers must pay at least minimum wage—as well as overtime if you work over 40 hours per week. However, there are a number of exemptions based on pay and job descriptions. One of those is the “Outside Sales Employee” exemption.

What Is an Outside Sales Employee?  

To be considered an outside sales employee, you must meet both of the following qualifications:

  • Your primary duty is making sales.
  • You must regularly and customarily perform these sales away from your employer’s office or places of business.

How Do You Know if “Sales” Is Your “Primary Duty”? 

Generally speaking, your “primary duties” are the most important duties that you perform. Some people perform sales work in addition to other duties, so if you’re involved in a legal dispute about how your employee classifies you, it will be determined case-by-case whether your primary duty is sales, based on a holistic look at your job in its entirety.

“Making sales” is generally accepted to mean selling products or services, or securing orders or contracts from clients. It can also include consignment and shipment for sales, as well as transfers of titles to tangible property, among other transactions.

It can also include securing orders for “the use of facilities.” Under the law, the definition of this includes selling advertising time on radio, television, or in print. If you’re selling a service, you don’t have to be the one performing the service to qualify as an outside sales employee.

How Often Do You Need To Be Away From Your Employer’s Location? 

Outside sales employees don’t conduct their sales work in an office. Generally speaking, you’re an outside sales employee if you visit the customer in person—whether that’s a place of business or a home, as in the case of door-to-door salespeople.

Generally, you aren’t classed as an outside sales employee if you sell by phone, online or via mail campaigns, unless that’s just a prerequisite to visiting the customer in person.

In today’s era of remote work, you might think that working from home might qualify you as an outside sales employee, since you’re not on your employer’s premises. However, if you work from any fixed site at all, you’re not considered an outside salesperson—even if your employer doesn’t own the location where you work.

What To Do if Your Employer Is Misclassifying You 

If you suspect your employer is misclassifying you as an outside sales employee—perhaps to avoid having to pay you minimum wage and overtime—you should speak to a knowledgeable employment attorney.

Your attorney can assess the situation, determine your proper classification, and help you gain restitution in court if that’s applicable. Call us at 267-273-1054 or email us at for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.