(a) Drivers who deliver products and also sell such products may qualify as exempt outside sales employees only if the employee has a primary duty of making sales. In determining the primary duty of drivers who sell, work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including loading, driving or delivering products, shall be regarded as exempt outside sales work.
(b) Several factors should be considered in determining if a driver has a primary duty of making sales, including, but not limited to: a comparison of the driver's duties with those of other employees engaged as truck drivers and as salespersons; possession of a selling or solicitor's license when such license is required by law or ordinances; presence or absence of customary or contractual arrangements concerning amounts of products to be delivered; description of the employee's occupation in collective bargaining agreements; the employer's specifications as to qualifications for hiring; sales training; attendance at sales conferences; method of payment; and proportion of earnings directly attributable to sales.
(c) Drivers who may qualify as exempt outside sales employees include:
(1) A driver who provides the only sales contact between the employer and the customers visited, who calls on customers and takes orders for products, who delivers products from stock in the employee's vehicle or procures and delivers the product to the customer on a later trip, and who receives compensation commensurate with the volume of products sold.
(2) A driver who obtains or solicits orders for the employer's products from persons who have authority to commit the customer for purchases.
(3) A driver who calls on new prospects for customers along the employee's route and attempts to convince them of the desirability of accepting regular delivery of goods.
(4) A driver who calls on established customers along the route and persuades regular customers to accept delivery of increased amounts of goods or of new products, even though the initial sale or agreement for delivery was made by someone else.
(d) Drivers who generally would not qualify as exempt outside sales employees include:
(1) A route driver whose primary duty is to transport products sold by the employer through vending machines and to keep such machines stocked, in good operating condition, and in good locations.
(2) A driver who often calls on established customers day after day or week after week, delivering a quantity of the employer's products at each call when the sale was not significantly affected by solicitations of the customer by the delivering driver or the amount of the sale is determined by the volume of the customer's sales since the previous delivery.
(3) A driver primarily engaged in making deliveries to customers and performing activities intended to promote sales by customers (including placing point-of-sale and other advertising materials, price stamping commodities, arranging merchandise on shelves, in coolers or in cabinets, rotating stock according to date, and cleaning and otherwise servicing display cases), unless such work is in furtherance of the driver's own sales efforts.
Notes of Decisions
Thomas Killion v. KeHE Distributors, 761 F.3d 574 (6th Cir. 2014).
· cites it 16× “Also relevant to this case is 29 C.F.R. § 541.504 , titled “Drivers who sell,” which both parties agree provides a close analogy to the considerations at issue.”
Florentino Meza v. Intelligent Mexican Mktg., 720 F.3d 577 (5th Cir. 2013).
· cites it 5× “We proceed first by applying the factors listed in 29 C.F.R. § 541.504 (b) to Meza’s case. We then consider the relevance of the examples of exempt and non-exempt driver-salesmen listed in 29 C.”
Nielsen v. Devry, Inc., 302 F. Supp. 2d 747 (W.D. Mich. 2003).
· cites it 5× “29 C.F.R. § 541.504 (c)(2). In another example, a company representative visits stores to perform promotional work but does not complete the sale of the company’s products.”
Amendola v. Bristol-Myers Squibb Co., 558 F. Supp. 2d 459 (S.D.N.Y. 2008).
· cites it 3× “505 was withdrawn in 2004, but the language of this subsection is preserved in the current 29 C.F.R. § 541.504 , titled “Drivers who sell,” which provides: Several factors should be considered in determining if a driver has a primary duty of making sales, including, but not…”
Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d 428 (D.N.J. 2011).
· cites it 4× “) Defendants rely on 29 C.F.R. § 541.504 (a) in support of their argument, noting that Plaintiffs primary duty was making sales because Plaintiff received sales commissions and purportedly “bore the burden of collections and risks of shortages and product returns.”
Clements v. Serco, Inc., 530 F.3d 1224 (10th Cir. 2008).
· cites it 2× “For example, 29 C.F.R. § 541.504 explains that promotional work is not exempt, unless it is actually performed incidental to and in conjunction with an outside employee's own sales.”
Davina Hurt v. Com. Energy, Inc., 973 F.3d 509 (6th Cir. 2020).
“at 22162 (citation omitted); 29 C.F.R. § 541.504 (c)(2). What happens if salespeople are required to say that their employer’s filling of any order depends on it having available stock (“while supplies last”)? Does that disclaimer disqualify them from making sales because they…”
Miller v. Farmer Bros., 150 P.3d 598 (Wash. Ct. App. 2007).
· cites it 3× “29 C.F.R. § 541.504 (b); Hodgson v. Klages Coal & Ice Co.”
Schmidt v. Eagle Waste & Recycling, Inc., 598 F. Supp. 2d 928 (W.D. Wis. 2009).
· cites it 2× “However, plaintiff contends that the non-sales work she conducted was “promotional work” because it was “incidental to sales made, or to be made, by someone else,” 29 C.F.R. § 541.504 (a), and therefore, cannot be included as part of her exempt work.”
Rehberg v. Flowers Baking Co. of Jamestown, LLC, 162 F. Supp. 3d 490 (W.D.N.C. 2016).
“In addition to the parties’ arguments, the court has also considered the applicable factors outlined in 29 C.F.R. § 541.504 (b) and finds that the record either does not contain sufficient information on the factors, the factors are inapplicable, or that they do not conclusively…”
— 29 C.F.R. § 541.504(b) — 2 cases
Thomas Killion v. KeHE Distributors, 761 F.3d 574 (6th Cir. 2014).
“Also relevant to this case is 29 C.F.R. § 541.504 , titled “Drivers who sell,” which both parties agree provides a close analogy to the considerations at issue.”
— 29 C.F.R. § 541.504(b)(2) — 1 case
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