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May 12, 2010
Technology's Impact on the Outside Sales Exemption

Keeping sales representatives connected via technology can certainly help improve productivity while they are away from the office. But it might also impact whether they qualify for the outside sales exemption under the Fair Labor Standards Act (FLSA).

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In a BLR webinar titled "Reducing Overtime Costs: What You Legally Can—and Can't—Do to Keep Workers at Their Straight-Time Rates," Laura P. Worsinger, Esq., offered some guidelines regarding technology's impact on the outside sales exemption.

Sales representatives often do not spend the majority of the day visiting clients, but do their work from an office, or by phone or on the Internet. If their offices are at a remote location, such as their homes, they are not considered "outside sales" people.

She also said that:

  • In general, to be engaged "away from an employer's business, the outside sales employee must make the sales physically at the customer's place of business."
  • Sales by phone, email, or the Internet are not considered "outside sales work."
  • In California, instead of "customarily and regularly" being engaged away from the employer's place of business, the sales person must spend more than 50 percent of his or her time selling away from the employer's place of business.

Laura P. Worsinger, Esq. is Of Counsel with the Los Angeles office of Dykema Gossett PLLC. She has broad counseling and litigation experience and specializes in the defense of employers in individual and class actions involving wage and hour violations, misclassification, discrimination, wrongful termination, and other employment-related proceedings. She can be contacted at

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