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November 18, 2010
Outside Sales and Highly-Compensated Exemptions

In a BLR webinar entitled "Overtime: Legal Strategies for Whittling Down Your Payouts Without Breaking the Law," Harold (Hal) M. Brody, Esq., partner, and Fredric C. Leffler, Esq., Senior Counsel in the Labor and Employment Law Department of Proskauer Rose LLP described the key factors in determining who's really entitled to overtime.

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Some of the factors that determine the Outside Sales exemption include::

  • The employee regularly spends more than one-half of his/her time working outside of the company's offices making sales or obtaining orders
  • Time spent on incidental duties (e.g., deliveries, collections, etc.) does not count toward exemption
  • Promotional work that is actually performed incidental to sales made and is in conjunction with an employee's own outside sales may be considered outside sales work
  • Work performed incidental to and in conjunction with employee's sales efforts may be exempt. Examples: writing sales reports, planning itineraries, revising sales catalogue
  • There is no salary requirement

Some of the key factors that determine the Highly-Compensated Employees exemption include:

  • Earn annual compensation of at least $100,000 per year, including at least $455 per week paid on a weekly basis. This amount includes commissions and non-discretionary bonuses, but does not include insurance payments, retirement plans and fringe benefits
  • Performs office or non-manual work
  • Customarily and regularly performs at least one of the duties of an exempt executive, administrative or professional employee
  • This is not applicable to Computer Professionals

Harold (Hal) M. Brody, Esq. is a partner in the Labor & Employment Law Department with Proskauer Rose LLP ( His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law. Fredric C. Leffler, Esq. is a Senior Counsel in the Labor & Employment Law Department and co-head of the Employment Law Counseling and Training Group. He represents major private and not-for-profit employers in all aspects of labor and employment law.

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