Chapter § 2-27 29 CFR § 541.501. Making Sales or Obtaining Orders

• Jurisdiction: United States

2-27 29 CFR § 541.501. Making Sales or Obtaining Orders

(a) Section 541.500 requires that the employee be engaged in:

(1) Making sales within the meaning of section 3(k) of the Act; or

(2) Obtaining orders or contracts for services or for the use of facilities.

(b) Sales within the meaning of Section 3(k) of the Act include the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property. Section 3(k) of the Act states that "sale" or "sell" includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.

(c) Exempt outside sales work includes not only the sales of commodities, but also "obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer." Obtaining orders for "the use of facilities" includes the selling of time on radio or television, the solicitation of advertising for newspapers and other periodicals, and the solicitation of freight for railroads and other transportation agencies.

(d) The word "services" extends the outside sales exemption to employees who sell or take orders for a service, which may be performed for the customer by someone other than the person taking the order.

2-27:1 Commentary

2-27:1.1 Courts and the Outside Sales Exemption

• Schmidt v. Eagle Waste & Recycling Inc., 599 F.3d 626 (7th Cir. 2010) (court affirms summary judgment for employer on outside sales exemption, noting that plaintiff spent four to eight hours a day outside the office making in-person sales calls, visited the office about 50 percent of her work days, and maintained a data base of customers that was the basis of her collections and thus commission payments; court also affirms summary judgment on tacking of outside sales exemption with administrative exception because plaintiff, when not pursuing outside sales, also developed advertising and marketing plans, managed customer complaints, administered the customer database, and dealt with

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