EMPLOYMENT UPDATE: DOL Issues Opinion Letters on Outside Sales, Commission-based Employees and 3rd Party Assistance

Do you have exempt outside sales employees, exempt commission-based employees, or have third parties that contribute to your employees’ compensation?  If so, you may be affected by new department of labor guidance.

The United States Department of Labor (“DOL”) recently issued a number of new Opinion Letters (“Letters”) that address multiple topics.  The Letters consisted primarily of interpretive guidance for certain exempt employees, including outside sales employees and commission-based employees.  The DOL also addressed whether manufacturers may provide assistance in paying a dealership employer’s minimum wage obligations to employees.

Outside Sales Exemption

FLSA2020-6: Salespeople who travel to different locations to sell products through the employer’s mobile assets (i.e., electronic tablets) qualify for the outside sales exemption.  Read the full letter here

FLSA2020-8: Salespeople who construct displays and perform demonstrations at various retail locations not owned by the employer, trade shows, home and garden shows, and state and county fairs to sell the employer’s products qualify for the outside sales exemption. Read the full letter here.

Retail or Service Commission-based Employees

FLSA2020-10: When an exempt employee under the commission sales exemption does not receive more than half of the employee’s compensation in commissions in the relevant representative period the employee does not qualify for the commissioned-based exemption. Read the full letter here

Third-Party Assistance in Paying Minimum Wages to Employees

FLSA2020-7: An automobile manufacturer’s direct payments of incentive compensation to an automobile dealership’s employees may count toward the dealership’s FLSA minimum wage obligations to the employee. Read the full letter here.

The DOL Letters are fact-specific guidance.  As a result, the answer may be different provided the factual circumstances differ from those laid out in the Letters issued above.  In the event you may be impacted by the above Letters, or for any other general questions related to exempt employees or compensation questions under the FLSA, please contact Peter M. Langdon at [email protected] or Harvey B. Cooper at [email protected].