The Outside Salesperson Exemption
The Fair Labor Standards Act (FLSA) is a set of laws that govern wages and hours. The FLSA sets the minimum wage for hours worked and has set overtime rates at one-and one-half times the base rate for hours worked over 40 per week. Employees who meet certain requirements are exempt from the provisions of the FLSA. One exception to these provisions is the outside sales exemption. If your company has outside sales positions, your employees may qualify for this exemption. Unlike the White-Collar Exemptions (Executive, Administrative and Professional), this exemption has no minimum salary requirement and allows outside sales representatives to be primarily compensated on commission. Outside sales people who meet this exemption are not required to be paid a minimum salary, are not eligible for overtime, are not required to be paid minimum wage, and are not be required to track their hours.
The Outside Sales Exemption is one of the simpler exemptions to understand and only has two requirements. First, outside sales people must be primarily in engaged in making sales or getting orders or contracts for services or facilities which will be paid by the customer. Secondly, they must be customarily and regularly engaged away from the employer’s place of business. Outside sales does not include sales made by mail, telephone, or Internet, unless the contact is made in conjunction with a personal meeting. Pertinent terms are defined below.
· Primary Duty: The principal, main, major, or most important duty the employee performs must be sales.
· Sales: Any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition. Sales tasks could include duties such as driving to and from a customer site for the purpose of a sales meeting, attempting to solicit new customers or increase the sales of an existing customer, meetings with a customer that take place at the customers business location, stocking a car with the products the sales person intends to present to the customer for purchase, and certain promotional work.
· Away: The sales person must make sales away from the employer’s business. Sales by phone, online, or from a home or remote sales office do not count as away. Away locations would include the customer’s place of business, the customer’s home, or other location. Outside sales people are typically selling to their customers face to face.
· Customarily and Regularly: Greater than occasionally and less than constantly.
Any fixed site, whether home or office, used by a sales person as a headquarters is considered one of the owner’s places of business, even when the employer is not the owner or tenant of the property. This means that sales people who work mostly from home, their employer’s worksite, or a satellite sales office are still considered to be “in the office” and are not eligible for the exemption.
Promotional work may or may not qualify. Promotion work done in conjunction with an employee’s own outside sales or solicitations is exempt. For example, if an outside sales person’s duties included setting up or refreshing a display or reorganizing merchandise as part of making sales to their customer, these duties would be considered exempt work. Promotional work that is incidental to sales is not exempt. Therefore, an employee who maintains store displays but has no direct responsibility for selling to the customer is performing nonexempt duties. Drivers who sell and deliver may qualify, if their primary duty is sales and not delivery.
Here are specific examples to illustrate when the exemption would apply.
· Yes: A sales person for a temporary staffing agency that canvases a business park, meeting with different business owners, would likely meet the outside sales exemption if this is the normal method they use to make sales. An employee who sells solar by going door to door in a neighborhood would also meet the exemption.
· No: An employee who works in a call center and sells computer support services primarily through phone and email communications with customers would not meet the outside sales exemption. A retail sales person who sells furniture in a home furnishing store would not be exempt under the outside sales requirements.
An employee who does not qualify for the outside sales exemption may qualify under a different exemption. A commission-based employee may qualify under Section 7(i) of the FLSA. Other possible exemptions that should be reviewed include the highly compensated exemption and the administrative exemption. Job titles do not determine exempt status.
Here are some guidelines to ensure your employee meets the outside sales person exemption criteria.
· Make sure your employee’s primary duty is selling and that advertisements for the position and job descriptions are focused on employee’s sales responsibilities.
· Provide sales training and emphasize sales methods to employees in the position. Reinforce the focus on sales activities.
· Require the employee to independently solicit new business.
· Limit administrative, clerical, and non-sales work.
· Emphasize having the work done at the customers location.
· Use a compensation structure that is commission-based.
· Minimize direct supervision of outside sales employees.
· Track sales goals versus hours worked.
· Minimize work from the office or a fixed location, including a home office. Ensure the work is done outside the employer’s place of business and is done face to face with customers.
· Have promotional work done in conjunction with sales.
· Adhere to specific state and local regulations; especially regarding the amount of administrative work an employee may do. Several states have additional requirements for the outside sales exemption.
Sales people are frequently misclassified and treated as exempt employees. Sales methods have drastically evolved in recent decades. Sales agreements that previously required personal visits are now accomplished by phone, internet, video conferencing, text, and email exchanges. The percentage of sales people who customarily make sales away from the employer’s place of business is low. Employers considering classifying employees as outside sales representatives to take advantage of this exemption should know the regulatory stipulations or risk penalties for misclassification, including years of back pay. If you have not audited your sales classifications lately, it may be time to review them.
This article is based on federal requirements under the FLSA. Many states have exemption requirements that are more stringent (including California). When state law differs from the federal FLSA, an employer must comply with the standard most protective to employees. Links to your state labor department can be found at https://www.dol.gov/agencies/whd/state/contacts.
This publication is for general information only and is not to be considered legal advice.
For assistance with proper exempt nonexempt determination or other HR topic, contact Laura Henderson and Associates at North County HR (www.northcountyhr.com).
Recently I was asked a question, “Can I have two employees with the same job title, but with different exempt/nonexempt classifications?” The simple answer is yes, this is possible. From a compliance standpoint, federal and California law agree that job title is not determinative of exemption status. Under federal law, per the Department of Labor, “having some employees within the same job classification who perform the same duties but who are paid on a different (hourly) basis does not affect the status of any other exempt employees paid on a salary basis. Exemptions are not based upon a job title or job classification, but upon the salary and duties of each individual employee.” (29 C.F.R. Part 541). The California Department of Labor Standards also supports this position: DLSE Manual “Job Titles Are Not Determinative.” As with any exemption, job titles reflecting administrative classifications alone may not reflect actual job duties and do not determine exempt or nonexempt status. The actual determination of exempt or nonexempt status must be based on the nature of the work performed by the individual employee (DLSE manual 52.3.1).
To find out how and why you might want classify employees differently, read on.
Below is a brief review of the requirements to be properly classified as an exempt employee under the FLSA Executive, Administrative or Professional exemptions. Under the Fair Labor Standards Act employees may be classified as exempt when they:
These examples illustrate situations with the same job title but different exemption classifications.
However an employer classifies its employees, proper planning, clear communications, and adherence to federal and state guidelines should be implemented and conveyed.
Starting in 2021, small employers (with five or more employees) need to begin providing leave under the California Family Rights Act (CFRA). CFRA was originally passed into law in 1993 and affected companies with more than 50 employees. Beginning on January 1st, 2021, CFRA will apply to companies that have five or more employees, with at least one employee in California.
On September 17th of 2020, California’s Governor Newsom signed SB1383, also known as “Unlawful employer practice: California Family Rights Act”, which expands leave protections available to employees under CFRA.
Employers need to update employee handbooks effective January 1, 2021. Small employers need to add a CFRA section and larger employers need to update the CFRA section of the handbook to comply with the new law.
Employers who were previously exempt from CFRA need to develop the required leave administration procedures and documents. Documents are California specific and cannot be copies from previous FMLA forms or from the U.S. Department of Labor website. The Department of Fair Employment and Housing will have updated forms by January 2021 that employers can use.
The highlights of SB1383 include:
Employers also need to understand the interplay between Pregnancy Disability Leave (PDL) and CFRA. These two leaves do not run concurrently. A pregnant employee is entitled to up to 17 1/3 weeks of Pregnancy Disability Leave and an additional 12 weeks of leave under CFRA leave. This means your employee could be off work more than seven months and you are legally required to hold their position.
Leave of absence under CFRA does not require the employer to pay the employee during this time off. Companies should allow the use of any company paid time off programs. However, depending on the reason for leave, many employees will also be eligible for California’s partial income replacement program called Paid Family Leave (PFL). PFL provides up to eight weeks off for eligible absences and typically provides between 60-70 percent income replacement.
This is a substantial change that impacts nearly all California employers.
There are strategies for reducing the burden of CFRA leave requests: cross training employees, partnering with temporary or contract services to fill absences, encouraging open communications with employees (so you get advance notice and can plan). Leave of absence administration can be challenging. In preparation for this change in 2021, employers should become familiar with the regulations, update the employee handbook and workplace posters, and develop a process for evaluating, responding to, and documenting leave requests. Employers need to make sure requests for CFRA leave does not factor into employment decisions (such as disciplinary action, pay increases, or promotional opportunities).
One best practice is to provide employees a written leave of absence letter which outlines the request for time off, whether it is approved, the duration, income replacement options, benefits coverage, payment during their absence, their responsibilities, and who to contact if they have questions. If you are not sure of how to handle a leave of absence request, get professional help from a qualified Employment Attorney or HR Consultant.
Many technical aspects of CFRA leave are outside the scope of this summary. If you need help navigating the new CFRA or with other Human Resource issues, reach out to North County HR at firstname.lastname@example.org or 760-390-7357. We specialize in HR, small businesses, and California compliance and look forward to working with you.
This article provides information only and should not be construed as legal advice.
Beating Your Unemployment Claim
It’s frustrating. You had a truly terrible employee. Finally, you were able to move them out of the company, and then they file for unemployment, which impacts your unemployment insurance (UI) rating. You fill out the EDD questionnaire to appeal their claim, but it seems like the employee always wins. Is it worth it to attend the EDD hearing? It takes time to attend the hearing and prepare your materials. It’s important to know when to fight it and how to prepare if you decide to win your case.
When should you fight an unemployment claim and when does it not make sense? It is very time consuming to not only attend the hearing, but to prepare your supporting documentation. There is a chance you will not win. The employee is almost always eligible if they lose their job through no fault of their own, such as in a layoff or termination due to work quality or quantity. If this is the case, don’t bother to attend the hearing. You will not win. On the other hand, the employee is usually NOT eligible when they voluntarily quit or accept another job. This is one reason that it is a best practice to get any voluntary resignation in writing. This document will easily make your case in the event of an unemployment dispute. The claim employers most often want to appeal involves gross misconduct. Some examples of gross misconduct include: dishonesty (such as theft, embezzlement or falsification of timecards), intoxication on the job and extreme insubordination. Check the EDD website to see if your issue is considered misconduct. You have a good chance of winning the appeal if you can show solid evidence of gross misconduct.
The EDD hearing is a formal legal proceeding, which takes place in front of a judge. You will be sworn in and then you will testify, along with your former employee and any witnesses either side provides. Later in the process you will have a chance to question the employee and any witnesses. Take notes throughout the process so you know which questions you will ask when it comes your time to ask questions. It’s best to focus on the critical items, what the employee was terminated for, and avoid bringing up every grievance you had with the employee. Don’t get stuck in the weeds.
The best way to improve your chances of winning an appeal of a claim is to be prepared. This means presenting thorough documentation that explains what transpired with your former employee. If you know that you intend to fight any unemployment claim, you should start gathering and organizing documentation before the employee even files. Don’t just provide every document in the employees personnel file. Carefully select the documents, notes, performance documentation, reports, emails, and witnesses that demonstrate what your employee did. Help the judge by painting a picture of what transpired with specific documentation and testimony.
Prepare 3 copies of any document you plan to use as evidence. One copy is for you, one for the judge and one for your former employee. Any written material that you will be providing to the judge must also be given to your former employee to review at the hearing. Prepare a written summary of the key events. This summary should include: the employee’s name, title, hire date, and termination date, a timeline of the course of events, including a history of the critical incident or issues and notes on how you allowed the employee to improve OR how you allowed the employee to respond to any wrongdoing. If you provide complicated reports or company documents, highlight what the material is illustrating. If the documents contain industry or company specific language or jargon spell out their meanings for the judge. Make sure you include copies of any notes or documents, such as verbal warnings, written warnings, performance evaluations, or emails documenting the specific issue that resulted in the termination. If there are pictures or video from security footage that is relevant be sure to provide that as well.
On the day of the hearing make sure you are organized. Bring a copy of the hearing notice. Take note of the address and start time. Plan to arrive early and account for any possible traffic and parking delays. Bring any relevant witnesses. Appropriate witnesses are people who have first-hand knowledge of the specific issues you will be covering in the hearing. This is typically the former employee’s manager and / or any employees who may have witnessed the gross misconduct. It is perfectly acceptable to review testimony with your witnesses before you are called in front of the administrative law judge. You may provide a written statement in lieu of testimony. However, this is not recommended since a written statement is not granted the same weight since it cannot be cross examined. Although you are likely irritated with your former employee, refrain from attacking or smearing their reputation. Be professional and present the facts without editorializing to the judge.
However frustrating and time-consuming it may be to appeal an unemployment claim that you feel is unjustified or unfair, it could be worth it. If you are prepared and have thorough documentation that shows gross misconduct, it will greatly improve your chances of winning an appeal at an EDD hearing. Good luck and let us know if you win!
What’s your Wage Strategy?
If you haven’t already, it’s time to review your wage strategy for the next few years. Wages in California used to be a lot simpler. There was just one minimum hourly rate and one minimum salaried rate. These days there are many more complexities.
If your employee qualifies as a salaried exempt employee under the administrative, professional, or managerial exemptions, you must pay them at least the minimum salary. That wage is tied to twice the minimum wage multiplied by 2,080 hours per year. For employers with 25 or fewer employees, it is $45,760 in 2019. For employers with greater than 25 employees, the rate is $49,920. This minimum salary still applies even if the person works part-time hours. It cannot be prorated.
There are also two different minimum hourly rates in 2019. The minimum wage for employers with 25 or fewer employees is $11 an hour and $12 per hour for employers with over 25 employees. In addition to these two different levels of California minimum wage requirements, there are 23 cities or local ordinances within California (including the City of San Diego) that have adopted their own minimum wage. There are very few exceptions to the minimum wage rules.
If you have any sales people who are under the inside sales exemption you also need to review their compensation as well. Inside sales people can be exempt from overtime if their earnings paid in each pay period exceed 1 ½ times the minimum wage and more than half the employee's compensation represents commissions. Be careful with this exemption, it is very narrow and different from the other white collar exemptions.
As minimum wage increases, it leads to wage compression. This occurs as new workers are hired at nearly the same rate as workers with more skills, experience, or seniority. Or you hire a lower level employee at a rate closer to that of a high-level employee, such as a manager. Unless there is a plan in place to account for this problem, it can lower morale and lead to decreased productivity and increased turnover.
There are other considerations going forward. As minimum wage continues to rise, wage compression continues to put pressure on all middle level jobs. In addition to the increase in wages, consider the other rises in costs that are tied to wages, such as payroll taxes, workers comp insurance, vacation and sick pay costs and other similar expenses. An important part of your wage strategy should be to review pricing for products or services. Since wages typically make up a large percentage of a business’s expenses, determine if and when you will have to adjust the pricing of your products. Should you do it in one change that takes into account all the wage increases through 2023? Or will you make a few gradual increases as wages rise? Another consideration is that your suppliers and vendors may also be raising their prices to you as they contend with the same issues. Many restaurants have taken the strategy of adding a surcharge to food. This allows them to keep the published menu price the same, while identifying this increase as directly tied to the increase in the minimum wage (and often sick time requirements). Higher level jobs are also impacted. Since the minimum salary for exempt workers is tied to California’s minimum wage, by 2023 that salary will rise from current levels ($43,680 for smaller employers to $45,760 for those with 26 or more) to a whopping $62,400. Now is the perfect time to consider your wage strategy for the next few years.
We know…. You’re a small company with a lot of responsibilities and expenses. There is no way you could offer Paid Time Off to your staff. But what if you could offer PTO to your employees at the same time you reduce unplanned absences and increased your benefit offerings in the eyes of your employees? Many savvy California employers are considering offering PTO instead of sick leave. Before making this decision, make sure you understand the advantages and disadvantages to each approach and determine which plan is best for your business.
Did you know that since 2015 nearly all businesses in the state of California are required to provide paid sick leave (PSL) to employees? In addition to the California requirements, over 20 cities and local ordinances (including the city of San Diego) have their own sick requirements which often provide a greater benefit than the California plan. Therefore, if you have employees scattered across California you may have to understand, provide and administer several different sick leave policies. The sick leave requirement allows companies to meet the sick requirements through their own sick or PTO plan as long as that plan meets all the requirements of California’s Paid Sick Leave. A few of those requirements include posting and notification requirements, properly calculating and accruing or granting the leave, and other components of implementation.
Sick calls are particularly challenging in a small businesses with limited staff. As California employees have gotten used to seeing sick leave on their paystubs (a requirement of the PSL law), employers have started to notice a disturbing trend - The frequency of sick calls has increased! Sick leave is use it or lose it and employees realize if they don’t take it they won’t be able to bank the time for future sick needs or be cashed out upon termination. This tends to reward poor employees (those willing to call in sick when they are not sick) and does nothing to reward those who would never call in sick unless they were truly ill.
Why consider offering PTO instead of sick? Employees tend to prefer Paid Time Off and see it as a benefit offering vs. a statutory mandated requirement. PTO provides employees with one bank for vacation, sick or personal time and allows them to use it as appropriate for their circumstances. Employees enjoy the flexibility in how the time is spent and prefer not having to call in “sick” when they are not. For employees that are never sick, they can use the time for vacation or personal usage. For those employers who had typically offered sick, vacation and personal time, it allows them the convenience of managing only 1 leave bank. Also, for most employers it tends to reduce the amount of unexpected sick calls since employees can request PTO ahead of time instead of feigning illness. One important drawback to PTO is that it must be paid out at termination, unlike paid sick leave. Also, you must allow the maximum PTO bank to be 1.5X the employees’ annual accrual rate.
Offering PTO in lieu of sick is not for every business. If you do elect to offer PTO consider if the accrual method (when employees earn a small chunk of PTO each payroll instead of being granted the full amount when they become eligible) or grant method (providing the full amount by the required date) makes more sense for your business. It’s also important to cap the maximum PTO employees can have in their bank to limit your liability when an employee terminates employment. No matter which method you choose make sure you a strong payroll partner to help you track and accrue the leave as well as a written company policy in place that is clearly communicated to your employees. There are many requirements and nuances to the sick leave and PTO requirements so be sure to get help from a professional before you implement a new policy. Check out our cheat sheet at http://www.northcountyhr.com/resources.html to see more of the advantages and disadvantages of each type of plan.
You spend a considerable amount of time trying to find just the right candidate for the job. You filter through applications and resumes, conduct interviews, and way pros and cons. You’ve offered the job contingent on passing the background check. Just when you think you’re ready to hire the perfect candidate, a red flag goes up upon receiving the background check results. What do you do now? Legally there are steps you must take if you are considering rescinding the job offer due to a criminal conviction. Background checks, including criminal convictions, are regulated by the FCRA (Federal Credit Reporting Act). The intent of the FCRA is to provide and fair and accurate summary of this data for consumers and applicants.
Let’s say you discover a criminal conviction. Before you decide to deny an applicant, you must determine how that conviction affects the job, known as an “individualized assessment”. The intent of the individualized assessment is to determine if the conviction has a direct and adverse relationship with the specific job duties that justifies the employer denying employment. What is the nature and gravity of the offense? How long ago did it happen? Was it job-related or would it impact the specific job you are offering the candidate? For example, it may not make sense to decline a candidate with a felony DUI conviction if their role in the company doesn’t include any driving activities. However, you could easily justify denying a candidate with an embezzlement conviction for a job as your CFO. This is also the time to engage with the applicant to hear their side of the story. There may have been extenuating circumstances or a narrative of personal growth and rehabilitation since the conviction.
After this consideration, if you still feel the conviction may be a deal-breaker, the next step is the notice requirement. There are two parts. The first notice, the pre-adverse action notice, is a letter stating that the background check results are being reviewed and a decision is pending. Include a copy of the report and a “summary of your rights under the fair credit reporting agency act”, informing them that they have an opportunity to respond and the deadline. Keep copies of everything. Then wait at least five business days for a response. This gives the applicant a chance to explain or dispute the findings. You must consider any response before making a final decision. If they notify you within those five days that they are collecting evidence or working on their response, you must give them five additional days.
So, now it’s been five days since the first notice letter was sent. Either there has been no response, or you have received an explanation from the applicant arguing his case. You considered all the available information and have decided that you still want to rescind the job offer. Now you must send the second notice, the Adverse Action Notice. This must specifically express denial of employment and that it was due (or partially due) to the results of the background check. You should also include the contact information for the vendor that performed the background check on your behalf. Include procedures for challenging the decision or requesting reconsideration and notice of the right to file a complaint with the California Department of Fair Employment and Housing. Keep copies of everything.
It would be a shame to lose a prospective applicant due to an unfortunate blemish on a background check. We would all love to be the giver of second chances, but sometimes it isn’t a sensible decision for your business. By making sure you follow the Fair Credit and Report Act, you can protect yourself from legal action and know that you’ve done the right thing.
Your HR Director Is the Wrong Person to Conduct Your Sexual Harassment Training
In the age of the #metoo movement, sexual harassment training has never been more important. There are a variety of reasons why hiring an external trainer is a better choice than conducting the training in-house. Your internal Human Resources team may not be an expert in this area. It’s critical that the most up to date information is presented. When professional development training comes from the outside, it shows a commitment to the topic, so people are more likely to pay attention and attend the training. Most importantly, who has the time? Developing engaging content and materials is time-consuming. Why not hire an expert so you can focus on other Human Resources priorities?
Chances are good that your Human Resources team does not have a lot of experience dealing with sexual harassment. They may have never investigated a claim or had to assist a victim or deal with an aggressor. Trainers are required to have at least 2 years of experience in training, investigating, and advising. The federal and state laws are constantly changing, such as the new 2018 requirement to cover gender issues and sexual orientation. How can you be sure your team is up to date on the latest topics? Popping in a video is not enough. Training is required to be interactive and should include features such as role playing, reviewing industry-specific scenarios and include a question and answer segment.
All companies in California with 50 or more employees must provide at least 2 hours of training to all supervisors within 6 months of hire and every 2 years after. These are very busy people for whom attending a mandatory 2-hour training can be difficult. A professional trainer with practical experience, interesting anecdotes, and well-made training materials is more likely to present the topic in a meaningful way that engages the trainees. You want them to feel that the training was beneficial to them, and not a waste of company time.
Busy Human Resource personnel are rarely idle. Managing benefits packages, compliance reports, hiring and firing, counseling, and all the other requirements of the job leave little time to develop engaging content and materials. A professional trainer will ensure the content is customized for your business, meets the California training requirements and is delivered in a timely manner. Your trainer can customize your training to include specific topics related to professional behavior in the workplace such as discrimination, bullying, respect in the workplace and other company-specific behaviors you want to include.
Providing accurate, engaging, and up to date sexual harassment training is mandatory and necessary. Consider hiring a professional to conduct your next sexual harassment training. In this climate, it’s too important to skimp in this area. Replace #metoo with #nothere at your company.
How can I offer alcohol at our holiday office party and make sure it doesn’t get out of hand?
Hosting a holiday party for your staff is a nice way to reward them for their hard work during the year. If you are considering offering alcohol at the party, here are some tips you may want to consider.
Preparation starts before the party. When you provide the details, mention that alcohol will be served and ask people to drink responsibly. Encourage them to select a designated driver. Provide options for those who may overindulge. You might want to consider offering to reimburse for an Uber (both directions) for any employees who wish to take one home. Or if a hotel is nearby, see if you can obtain a discounted group rate in advance for those who wish to stay
With a large group, you can’t keep an eye on everyone. It is essential that you enlist help. Talk with the bartender / waitstaff at the beginning of the party. They should stop serving anyone who is visibly intoxicated. Also, ask them to inform you of anyone who is cut off. Request that the managers monitor those at their table throughout the evening. You might also assign a greeter as guests start to leave. If someone is intoxicated, they can intervene and help find a safe ride home.
Any of these ideas can help ensure that you and your employees will have a safe, enjoyable, and memorable holiday gathering.
What is the purpose of the I9 form? The I9 verifies that an employee is legally eligible to work in the United States. The intent of the I9 is to establish 1) identity and 2) eligibility to work in the United States. Employers may NOT hire employees that are not eligible to work in the United States. Employers must complete an I9 for all employees upon hire.
When do I complete it?
Understanding acceptable documents
Laura Henderson is a Human Resources professional with over 20 years experience working with a variety of businesses.