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Top Wage and Hour Lawyer Reply: As A Commissioned Sales Person, Am I Exempted From Being Paid Overtime Wages?

On Behalf of | Aug 29, 2014 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Overtime Wage Attorney Answer: What are “off the clock” hours and are they compensable under the Fair Labor Standards Act? Am I entitled to overtime compensation if I am an “inside” salesperson? Am I an exempt or non-exempt employee? What sorts of damages am I entitled to if my employer failed to pay me the correct wages for working overtime? How do I find the top overtime, wage, and hour lawyer in Ohio?

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The Fair Labor Standards Act (“FLSA”) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages, plus reasonable attorney’s fees and costs. Liquidated damages are paid directly to the affected employees.

These requirements do not apply to everyone, however. The FLSA provides a specific list of employees that are exempt from these wage and hour requirements. Specifically, this list includes employees employed as bona fide executive, administrative, professional, certain computer employees and outside sales employees. Now, don’t just go by the names of these exemptions or job titles given out by the company that you work for as each exemption has a very specific test regarding each employee’s job duties.

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For today’s blog, we are focusing on the Outside Sales Exemption. In order to make you exempt from overtime and minimum wage laws under this exemption, you job would have to show: (1) You primary duty must be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (2) you must be customarily and regularly engaged away from the employer’s place or places of business.

Let’s break this down a little. “Primary duty” under the first part of this wage exemption test means the principal, main, major or most important duty that the employee performs. This determination of your primary duty is based on all the facts in your particular case, with a significant focus on the nature of your job as a whole. This may be the most hard to determine and therefore, the part that requires consultation with a qualified wage and hour lawyer.

Next, let’s look at what “making sales” means. Under the FLSA, “sales” includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property. Simply, if you are selling something, you probably meat this requirement.

Now, the most simple part should be the second part of the test. This should be pretty clear as it plainly is drawing a distinction between inside and outside sales people. Hell, the name of the exemption is “Outside Sales Exemption.” Yet, it amazes our wage and hour lawyers how many times we see Ohio employees come in that say their boss told that they were exempt even though they work inside sales. These are not small companies that are making this mistake. These are large companies that should know their wage and hour laws or at least employ a few wage and hour lawyers to tell them what those laws are.

Recently, the Department of Labor reported that LinkedIn Corp., a well known professional networking organization, has agreed to pay $3,346,195 in unpaid overtime wages and $2,509,646 in liquidated damages to 359 current and former employees working at various LinkedIn offices in California, Illinois, Nebraska and New York. The employees in question were classified as “commissioned inside salespeople,” and thus, it should be clear that they would not have been considered exempt under the FLSA, which provides a special exemption only for “outside” salespersons. As such, upon a finding that the employees were indeed “inside” salespeople, LinkedIn would likely have been liable to failure to pay overtime compensation to each of these employees to the extent and amount of hours proven to be unpaid for each employee.

The Department of Labor also reported that LinkedIn failed to record and pay for all hours worked in workweek by these employees. As such, in addition to paying the employees for back wages and liquidated damages, and in order to attempt to prevent future violations in the future, LinkedIn also agreed to enter to a separate agreement that included compliance training for wage and hour protocols and also required the company to distribute its policy prohibiting off-the-clock work to all nonexempt employees.

So that last lesson of this blog is this: just because you work for a big company don’t just assume that they must be doing everything right.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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