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elaws - employment laws assistance for workers and small businesses - FLSA Overtime Security Advisor

Outside Sales Employees

Drivers Who Sell

Drivers who deliver products and also sell such products may qualify as outside sales employees only if their primary duty is making sales. In determining the primary duty of drivers who sell, work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including loading, driving or delivering products, qualifies as outside sales work. Several factors should be considered in determining whether a driver's primary duty is making sales, including:

  • A comparison of the driver's duties with those of other employees engaged as drivers and as salespersons;
  • The presence or absence of customary or contractual arrangements concerning amounts of products to be delivered;
  • Whether or not the driver has a selling or solicitor's license when required by law;
  • The description of the employee's occupation in collective bargaining agreements;
  • The employer's specifications as to qualifications for hiring, sales training, attendance at sales conferences and method of payment; and
  • Proportion of earnings directly attributable to sales.

Examples of drivers who may qualify as outside sales employees include:

  • A driver who provides the only sales contact between the employer and the customers visited, who calls on customers and takes orders for products, who delivers products from stock in the employee's vehicle or procures and delivers the product to the customer on a later trip, and who receives compensation commensurate with the volume of products sold.
  • A driver who obtains or solicits orders for the employer's products from persons who have authority to commit the customer for purchases.
  • A driver who calls on new prospects for customers along the employee's route and attempts to convince them of the desirability of accepting regular delivery of goods.
  • A driver who calls on established customers along the route and persuades regular customers to accept delivery of increased amounts of goods or of new products, even though the initial sale or agreement for delivery was made by someone else.

Examples of drivers who generally would not qualify as outside sales employees include:

  • A route driver whose primary duty is to transport products sold by the employer through vending machines and to keep such machines stocked, in good operating condition and in good locations.
  • A driver who calls on established customers day after day or week after week, delivering a quantity of the employer's products at each call when the sale was not significantly affected by solicitations of the customer by the delivering driver or the amount of the sale is determined by the volume of the customer's sales since the previous delivery.
  • A driver primarily engaged in making deliveries to customers and performing activities intended to promote sales by customers (including placing point-of-sale and other advertising materials, price stamping commodities, arranging merchandise on shelves, in coolers or in cabinets, rotating stock according to date, and cleaning and otherwise servicing display cases), unless such work is in furtherance of the driver's own sales efforts.

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