Are You Really in Outside Sales?

Outside salespeople in California are like the last of the bareback riders when it comes to legal protections from hard employment practices. The outside salesperson has almost no protection under any California Industrial Welfare Commission wage order. Outside salespersons are entitled to virtually no wage protections. They need not be guaranteed overtime pay, breaks, or minimum wage. You can almost literally work an outside salesperson to death and guarantee them nothing more than taste of his or her own productivity.

Who is an outside salesperson? Each wage order (8 Cal. Code Reg. §§ 10110 et seq.) defines an outside salesperson with the same language:

"any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities."

However....

Many employers routinely misclassify their employees as outside sales staff. Common examples include commissioned employees who spend time delivering product, even if on a regular "sales route." For example, in Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 796, the court found it to be a factual question whether "route sales representatives" for a bottled water company spent more than half of their time in sales as opposed to delivery activities. The actual activities here control. The employer's job description was not controlling. The important analysis is that of "the realistic requirements of the job." In other words, "how the employee actually spends his or her time" and "whether the employee's practice diverges from the employer's realistic expectations."

If you spend more of your time performing customer service, delivering product, making repairs and other activities that are not part of the sales and marketing of the goods or services sold by the employer, you probably are not an outside sales representative, no matter what your business card calls you.

Likewise, if you spend a significant amount of time at your employer's place of business, you are not in "outside" sales. For example, if you spend 75% of your time engaged in sales activity, and 25% of your time doing customer service, you are primarily engaged in sales activities. But if half of that sales activity is performed in your office at the company, you spend only 37.5% of your time in "outside sales." That makes you an inside saleperson, and, with the exception of mercantile, professional, technical, clerical, mechanical and similar industries, you are non-exempt from almost all wage order protections.

But, if you are under 18, it doesn't matter what you do. You are not an outside salesperson. You are entitled to overtime, when applicable. You must make at least minimum wage. And you are entitled to breaks and other protections provided by the wage order applicable to your industry.

These cases often qualify for class action status. We have represented employees misclassified as outside sales in the automotive industry, water and other delivery businesses, the paint and auto body industry and the construction industry. If you would like to have your situation reviewed to see if you have a claim, drop us an email and we would be happy to give you an evaluation.

Comments

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I worked for Yosemite Water Co. for over three years. In 2002 or 2003 I received notice of a class action suit against them and was asked to fill out paperwork about how I spent my working hours. I have since moved and cannot find the name of the lawyer who sent me these papers. How can I find out if this class action suit was settled and if I am entitled to some money?