Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 113 of facilities includes but is not limited to selling radio or television air time, soliciting advertisements for publications, and soliciting railroad freight. 621 Regarding the second requirement, the employer’s place of business is not limited to the employer’s factory, retail facility, or office. Rather, an employer’s place of business is defined broadly to include any fixed location, such as the employee’s home, if the employee regularly conducts sales activities there. 622 Thus, the employee must routinely conduct sales activities at some location away from the fixed sites maintained by the employer, such as at the customers’ homes or places of business or at a location maintained by a third party. 623 Further, to meet the requirement that an employee be “customarily and regularly” engaged away from the employer’s office, the employee must work outside the employer’s place of business more than occasionally, but this does not mean that those activities must be performed more than once a week or even every week. 624 In fact, the DOL has found that leaving the employer’s place of business for one to two hours a day, once or twice a week may be sufficient. 625 Multiple courts have adopted the DOL’s view of what it means to “customarily and regularly” work away from the employer’s place of business in a case concerning home sales employees who claimed that they were not properly classified as exempt outside sales employees because they spent some time working from temporary sales offices maintained by their employer. 626 However, it is the employer’s burden to establish that an employee travels away from the employer’s place of similar sales work for same employer were not exempt and stat ing that “ Christopher ’s holding does not readily t ransfer to other indust iries” due to the “unique regulatory environment of the pharmaceut ical indust ry”). 621 29 C.F.R. § 541.501(c). 622 29 C.F.R. § 541.502 (stat ing that “any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitat ion of sales is considered one of the employer’s places of business”). In addit ion, sales employees who occasionally telephone customers or meet with them at the employer’s offices do not lose their FLSA exempt ion so long as that conduct is incidental to or in conjunct ion with the employee’s bona fide out side sales act ivit ies. DOL Wage & Hour Opinion Let ter FLSA2009-28 (Jan. 16, 2009) (“Activities such as making phone calls, sending e-mails, and meet ingwith client s in the office are considered exempt if performed incidental to or in conjunct ion with the agent ’s out side sales act ivit ies.”). 623 29 C.F.R. § 541.502 (list ing customer’s place of business or home as examples of locat ions that are “away from the employer’s place or places of business”). The classificat ion of resident ial real estate sales jobs illust rates the dist inct ion between the employer’s place of business and those locat ions that are considered “away from” the employer’s place of business. In analyzing the exempt status of such posit ions, the DOL and the court s have focused on whether the sales employees regularly leave a fixed locat ion to meet client s and prospect s at the place of the sale. Home sales employees operat ing from temporary sales offices in resident ial subdivisions are engaged “away from” their employer’s place of business when they show available lot s within the subdivision to prospect ive buyers because the “unit s” are product s for sale, rather than theemployer’s place of business. See DOL Wage & Hour Opinion Let ter FLSA2007-1 (Jan. 25, 2007); DOL Wage & Hour Opinion Let ter FLSA2007-2 (Jan. 25, 2007). See also Billingslea v. Brayson Homes, Inc. , No. 1:04-CV-00962-JEC, 2007 WL 2118990, at *4-5 (N.D. Ga. Mar. 15, 2007) (holding home sales employees who spent considerable amount of t ime performing sales work out side assigned model homes properly classified as exempt ); Tracy v. NVR, Inc. , 599 F. Supp. 2d 359, 364 (W.D.N.Y. 2009) (denying employee’s mot ion for summary judgment where dispute of fact existed as to whether sales representat ive spent significant amount of his t ime leaving the model home to visit lot s within development ). 624 DOL Wage & Hour Opinion Let ter FLSA2007-2 (Jan. 25, 2007). 625 Id . 626 See Lipnicki v. Meritage Homes Corp., No. 3:10-CV-605, 2014 U.S. Dist . LEXIS 32951, at *21-22 (S.D. Tex. Feb. 13, 2014); Billingslea , 2007 WL 2118990, at *3-4.