The case is Domenech v. Parts Authority, a summary order decided on June 17. Under the FLSA, the overtime rules don't apply to "any employee employed ... in the capacity of outside salesman." The regulations say an "outside salesman" is someone whose "primary duty" is "making sales" and who is "customarily and regularly engaged away from the employer's place or places of business in performing such primary duty." If that is not confusing enough, we also consider the following factors:
“the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” The regulations further instruct that “work performed incidental to and in conjunction with the employee’s own outside sales or solicitations, including incidental deliveries and collections, shall be regarded as exempt outside sales work,” and that “[o]ther work that furthers the employee’s sales efforts also shall be regarded as exempt work including, for example, writing sales reports, updating or revising the employee’s sales or display catalogue, planning itineraries and attending sales conferences.”The Court of Appeals (Pooler, Lohier and Carney) says plaintiff might fit into the outside salesman exception. But he might not, based on his deposition testimony that his primary duty was to service, install and inspect equipment and that any sales were incidental to this work." That testimony creates a classic credibility dispute for the jury. "The district court erred in picking between competing plausible inferences that could have been drawn from the evidence submitted." Let the jury figure it out.