Colin Walsh
Texas Employment Lawyer Colin Walsh

In the classic Thanksgiving film Planes, Trains, and Automobiles, Steve Martin’s character meets Del Griffith, a salesman played by John Candy, at an airport.  In fact, Del is the director of sales, shower curtain ring division for American Light & Fixture.  He works hard at his job and he is good at it.  In one particularly memorable scene, he sells a bunch of shower curtain rings to various people by pitching them as earrings from the likes of Walter Cronkite, Diane Sawyer, Darryl Strawberry, and the “Grand Wizard of China back in the fourth century.”  

Since he spends all of his time outside the office and traveling the country selling shower curtain rings, he certainly must put in a lot of overtime.  Under the Fair Labor Standards, any hours over forty that a covered employee works must be compensated at 1.5 times the regular rate of pay.  Unfortunately, Del does not receive any benefit from the FLSA because he is not a covered employee.  Under the Outside Sales Exemption, Del is exempt from both the FLSA’s minimum wage requirements and overtime pay requirements.

So what is the Outside Sales Exemption?  The Outside Sales Exemption exempts certain kinds of salespeople from the minimum wage and overtime requirements of the FLSA.  In order for an employee to be considered an outside sales employee, the employee’s primary duty is making sales or obtaining orders/contracts from customers away from the employer’s place of business.  The classic example of outside salespeople are the door-to-door salesmen of yore, knocking on your door to sell vacuums, books, knives, and, in Del’s case, shower curtain rings.  It might seem silly to note, but the term “outside salesperson” does not necessarily mean that covers any salespersons working the open air.  For example, a Christmas tree salesperson works outside, but would not be considered an outside salesperson under the FLSA.  The term outside refers to being a way from the employer’s place of business.  That’s why a Christmas tree salesperson would not be an outside salesperson.  The Christmas tree salesperson is selling trees to customers on the Christmas tree lot, which is the employer’s place of business.  Likewise, a salesperson making calls form a call center would not be an outside salesman because that person is making the calls from the employer’s place of business.

While outside sales must be the “primary duty” it does not have to be the only duty.  As defined in the regulations, “primary duty” just means the “principal, main, major, or most important duty that an employee performs.”  29 C.F.R. § 541.700(a).  Moreover, an employee may be exempt even if that employee spends less than 50% of their time performing the primary duty.  According to the regulations, employees who spend more than 50% of their time doing exempt work will generally be exempt, but “nothing . . . requires that exempt employees spend more than 50 percent of their time performing exempt work.”  29 C.F.R. § 541.700(b).  The example the regulations provide is of a manager who directs and supervises employees maybe exempt even if that manager spends most of their time running the cash register, which is non-exempt work.  That is because their most important duty is management.  In the outside sales context, that means that even if a salesperson spends a significant amount of time creating itineraries for travel, filling out reports, updating catalogues, or making deliveries, the employee may still be exempt if their primary duty is selling products away from their employer’s place of business.

The final thing to note about the Outside Sales Exemption is that unlike the other exemptions, there is no salary requirements.  To qualify as exempt under the executive, administrative, or professional exemptions to the FLSA, an employee must generally receive a salary of $684 or more per week.  That is not true for outside sales employees.  There are no minimum salary requirements for such employees.  Luckily, as I stated before, Del is good at his job.  So that shouldn’t be an issue for him.

If you think you are not being properly paid your wages, you should talk to an experienced employment attorney, who can evaluate your case and potentially provide options.  The attorneys at Wiley Walsh, P.C. have experience in FLSA and unpaid wage claims and would be happy to discuss any potential case or issue you might have regarding the FLSA or unpaid wages.  In the meantime, you should definitely check out Planes, Trains, and Automobiles.  It’s great!  

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.