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
- 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
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.