What is the Difference Between an Exempt and Non-Exempt Employee?
An exempt employee is type of employee that is exempt from many of California’s pro-worker laws, including the right to a minimum wage, the right to overtime pay, and the right to paid rest periods and unpaid meal breaks. If you’re an exempt employee, your employer can require you to work more than eight hours or more than 5 days a week without paying you a single extra cent or giving you any breaks.
What is an Outside Salesperson?
“Outside salespeople,” or outside sales reps, include any persons, 18 years of age or over, who regularly work more than 50% of their working time away from the employer’s place of business, or their home, selling items or obtaining orders for products or services.
Are Outside Salespersons Exempt? What are They Exempt From?
Under state and federal law, “outside salespersons” are classified as exempt from most wage and hour laws, meaning they don’t need to be paid overtime, minimum wage, or provided meal and rest periods. They still need to be reimbursed for business expenses though.
Simply making sales does not mean you are an exempt outsides salesperson. The test is strict and requires that your employer meet each test of the exemption. If your employer doesn’t meet those requirements, you are misclassified.
You Must Work Outside Your Home or Your Employer’s Offices
To be properly exempt as an outside salesperson in California, an employee must spend more than 50% of her working time outside their employer’s offices or your home selling or obtaining orders or contracts for goods or services. Cal. Code Regs. tit. 8, § 11010. Unlike the federal outside sales exemption, under California takes a purely quantitative approach to the type of work an employee performs. The focus is exclusively on whether the individual spends more than half their working time selling or obtaining orders or contracts for goods or services.
While the applicability of the exemption must be examined on a case-by-case basis, as a general rule, if you spend more time in your employer’s offices or your home than you do on the road you are likely to have been misclassifiedas exempt.
You Must Spend More Than Half Your Time Engaging In Sales-related Activities
Additionally, in order to qualify for the outside sales exemption, you must be engaged in sales activities. If the employee’s work is not directly related to sales than it does not count towards this requirement. Common examples of such non-sales-related activities can include deliveries, installation, collections, and data entry. These tasks do not count to the 50% plus time requirement even if these activities are done in furtherance of a future sale.
Talk to an Experienced Minimum Wage and Employment Lawyer
Every worker in California is entitled to be paid a fair wage for each hour worked unless they are properly classified as exempt. Just because your employer claims you are exempt doesn’t make it so. Many employees in California are shocked to realize they are improperly classified as exempt and are being unfairly deprives of considerable amounts of unpaid wages and penalties. We provide free consultations for all clients facing issues with being misclassified as exempt employees and deprives of their owed minimum wages and overtime. Contact our experienced employment lawyers today.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.