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a few questions Massachusetts

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  • a few questions Massachusetts

    i currently work for a delivery company in which my job title is " route salesman" i basically deliver. i am in a salary position in which i work 60-62 hours a week. is there any over time owed to me? also they have mandatory meetings after the day of work is completed, they say they dont have to pay us for that time because they buy us food, should they still pay us for our time?

  • #2
    Salaried is only a pay method. What matters is whether you are exempt or non-exempt. (I really need to set up a macro for that sentence.)

    If you are exempt, there are no circumstances whatsoever in which you are entitled to a single penny above your regular salary, no matter how many hours you work. (That one too.) This includes meetings after work. Whether they provide food is immaterial.

    If you are non-exempt, then you are owed overtime for all hours over 40 in a week that you work, including the mandatory meetings. Again, the food is immaterial.

    I, at least, am not familiar with the duties of a route salesman, so I cannot tell you which you are.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      re: A few questions Massachusetts

      well thanks for your input how can i find out if i am exempt or not?

      Comment


      • #4
        As I said, it's determined by your job duties. You can look up overtime exemptions under the Fair Labor Standards Act on the Department of Labor website, www.dol.gov.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          well i tried the site you sent me to, having a hard time finding out if i am exempt or not... so let me describe to you my job duties. when i started this job 6 years ago we use to get paid by the hour, plus comission, and get over time. but drivers ruined that by milking the clock, so they changed us to salary, x amount of dollars to drive the truck plus a commission rate which varies to what and how much product is on the truck. how ever if we work a fifth day on the ruck our rate to drive the truck is increased by like 20-25 dolars. so what do you tink?

          Comment


          • #6
            I think you just described your prior pay schedule, not your job duties.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              ok sorry, my job duties as folllows, i come in, i set up my invoices, drive an hour to boston, go to my stops get the order ready, bring it into the customer,(mostly mom and pop stores) check the order in, open the product put it away nicely, collect payment, and go to the next stop. we are responsible for the product, the vehicle(13 ton truck), the money, checks etc... drive back to the branch, gas up count all moneys and go home.i deliver ice cream, all year round, i'm not a neighborhood ice cream man

              Comment


              • #8
                Originally posted by italianmonkey View Post
                my job title is " route salesman"
                My late uncle was one, but considered an independent contractor. Don't ask me how they got away with that, since he delivered their product to their customers on their schedule...

                Employee.

                I understand the problems the company had with route salesfolks milking them. There are ways of dealing with that, like setting productivity goals and firing those that fail to meet them.
                Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

                Comment


                • #9
                  You may be exempt as outside sales...

                  § 541.500 Definition of ‘‘outside sales-man.’’

                  Section 541.5 defines the term ‘‘out-side salesman’’ as follows: The term ‘‘employee employed * * * in the capacity of outside salesman’’ in section 13(a)(1) of the Act shall mean any employee:

                  (a) Who is employed for the purpose of and who is customarily and regularly
                  engaged away from his employer’s place or places of business in:

                  (1) Making sales within the meaning of section 3(k) of the Act; or

                  (2) Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

                  (b) Whose hours of work of a nature other than that described in paragraph (a) (1) or (2) of this section do not exceed 20 percent of the hours worked in the workweek by nonexempt employees of the employers: Provided, That work performed incidental to and in con-junction with the employee’s own out-side sales or soliciations, including incidental deliveries and collections, shall not be regarded as nonexempt work.

                  § 541.505 Driver salesmen.
                  (a) Where drivers who deliver to an employer’s customers the products distributed by the employer also perform functions concerned with the selling of such products, and questions arise as to whether such an employee is employed in the capacity of outside sales-man, all the facts bearing on the con-tent of the job as a whole must be scrutinized to determine whether such an employee is really employed for the purpose of making sales rather than for the service and delivery duties which he performs and, if so, whether he is customarily and regularly engaged in making sales and his performance of nonexempt work is sufficiently limited to come within the tolerance permitted by § 541.5. The employee may qualify as an employee employed in the capacity of outside salesman if, and only if, the facts clearly indicate that he is employed for the purpose of making sales and that he is customarily and regularly engaged in such activity within the meaning of the act and this part. As in the case of outside salesmen whose jobs do not involve delivery of products to customers, the employee’s chief duty or primary function must be the making of sales or the taking of orders if he is to qualify under the definition in § 541.5. He must be a salesman by occupation. If he is, all work that he performs which is actually incidental to and in conjunction with his own sales effort is exempt work. All other work of such an employee is non-exempt work. A determination of an employee’s chief duty or primary function must be made in terms of the basic character of the job as a whole. All of the duties performed by an employee must be considered. The time devoted to the various duties is an important, but not necessarily control-ling, element.

                  (b) Employees who may perform a combination of selling or sales pro-motion activities with product deliveries are employed in a number of industries.
                  Distributors of carbonated beverages, beer, bottled water, food and dairy products of various kinds, cigars and other nonfood products commonly utilize such employees, variously known as routemen, route drivers, route salesmen, dealer salesmen, distributor salesmen, or driver salesmen. Some such emloyees deliver at retail to customers’ homes; others deliver on wholesale routes to such customers as retail stores, restaurants, hospitals, hotels, taverns, and other business establishments.

                  Whether such an employee qualifies as an outside salesman under the regulations depends, as stated in paragraph (a) of this section, on the content of the job as a whole and not on its title or designation or the kind of business in which the employer is engaged. Hearings in 1964 concerning the application of § 541.5 to such employees demonstrated that there is great variation in the nature and ex-tent of sales activity and its significance as an element of the job, as among drivers whose duties are per-formed with respect to different products or different industries and also among drivers engaged in the same industry in delivering products to different types of customers. In some cases the facts may make it plain that such an employee is employed for the purpose of making sales; in other cases the facts are equally clear that he is employed for another purpose. Thus, there is little question that a routeman who provides the only sales contact be-tween the employer and the customers, who calls on customers and takes orders for products which he delivers from stock in his vehicle or procures and delivers to the customer on a later trip, and who receives compensation commensurate with the volume of products sold, is employed for the purpose
                  of making sales. It is equally clear, on the other hand, that a routeman whose chief duty is to trans-port products sold by the employer through vending machines and to keep such machines stocked, in good operating
                  condition, and in good locations, is not selling his employer’s product or employed for the purpose of making sales but is employed for purposes which, although important to the pro-motion of sales to customers using the machines, plainly cannot characterize the employee as a salesman by occupation. In other cases there may be more difficulty in determining whether the employee is employed for the purpose of making sales within the meaning of this part. The facts in such cases must be weighed in the light of the principles stated in paragraph (a) of this section, giving due consideration to the factors discussed in subsequent para-graphs of this section.

                  (c) One source of difficulty in deter-mining the extent to which a route driver may actually be engaged in making sales arises from the fact that such a driver often calls on established customers day after day or week after week, delivering a quantity of his employer’s products at each call. Plainly, such a driver is not making sales when he delivers orders to customers to whom he did not make the initial sale in amounts which are exactly or approximately
                  prearranged by customer or contractual arrangement or in amounts specified by the customer and not significantly affected by solicitations of the customer by the delivering driver. Making such deliveries, as well as recurring deliveries the amounts of which are determined by the volume of sales by the customer since the previous delivery rather than by any sales effort of the driver, do not qualify the driver as an outside salesman nor are such deliveries and the work incident thereto directly to the making or soliciting
                  of sales by the driver so as to be considered exempt work. On the other hand, route drivers are making sales when they actually obtain or solicit, at the stops on their routes, orders for their employer’s products from persons who have authority to commit the customer for purchases. A driver who calls on new prospects for customers along his route and attempts to convince them of the desirability of accepting regular delivery of goods is likewise engaged in sales activity and is making sales to those from whom he obtains a commitment. Also, a driver salesman calling on established customers on his route, carrying an assortment of the articles which his employer sells, may be making sales by persuading regular customers to accept delivery of increased amounts of goods or of new products, even though the initial sale or agreement for delivery of the employer’s products may have been made by someone else. Work which is per-formed incidental to and in conjunction with such sales activities will also be considered exempt work, provided 29 such solicitation of the customer is frequent and regular. Incidental activities include loading the truck with the goods to be sold by the driver sales-man, driving the truck, delivering the products sold, removing empty containers for return to the employer, and collecting payment for the goods delivered.

                  (d) Neither delivery of goods sold by others nor sales promotion work as such constitutes making sales within the meaning of § 541.5; delivery men and promotion men are not employed in the capacity of outside salesmen for purposes of section 13(a)(1) of the act although both delivery work and pro-motion work are exempt salesman as an incident to his own sales or efforts to sell. The distinction between the making of sales and the promotion of sales is explained in more detail in the discussion and illustrations contained in § 541.504. Under the principles there stated a route driver, just as any other employee, must have as his chief duty and primary function the making of sales in the sense of obtaining and soliciting commitments to buy from the persons upon whom he calls if he is to qualify under the regulations as an employee employed in the capacity of out-side salesman. For this reason, a route driver primarily engaged in making de-liveries to his employer’s 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 or in coolers or cabinets, rotating stock according to date, and cleaning and otherwise servicing display cases, is not employed in the capacity of an outside salesman by reason of such work. Such work is nonexempt work for purposes of this part unless it is performed as an incident to or in conjunction with sales actually made by the driver to such customers. If the driver who performs such functions actually takes orders or obtains commitments from such customers for the products which he delivers, and the performance of the promotion work is in furtherance of his own sales efforts, his activities for that purpose in the customer’s establishment would be exempt work.
                  ========================================

                  "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

                  Comment


                  • #10
                    Do you drive a truck with a gross vehicle weight in excess of 10,000 lbs., or are you transporting hazardous substances?

                    What do you deliver?

                    Do you ever cross state lines, or are all of your trips local?


                    .
                    This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                    This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                    Comment


                    • #11
                      Re: armyretcw3, compensationcounsel

                      well let me start off with the armyretc3 reply... i do not make the initial sales i deliver the goods that are either called in to the call center by the customer or that are made by our sales men that go out on the field to write the order. i simply come in the morning and have my invoices ready to go, orders already made.


                      a to the reply to the compensation councel... i drive a truck that is 26,000lbs
                      and deliver ice cream pretty much local deliverys the plant is in seekonk mass, we do all of rhode island, all of the cape, all south eastern mass, all of boston some north as far as lexington, all of worchester. and a little more west of that

                      Comment


                      • #12
                        If you travel across state lines, and it appears that you do, for at least once every quarter, the employer is not required to pay for the overtime, if you worked over 40 hrs in a week. You are exempt under the FLSA section 13(b)1, that is applicable to truck drivers.
                        ========================================

                        "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

                        Comment


                        • #13
                          so for the other quaters i should get paid for the overtime? and where can i read up on these FLSA rules?

                          Comment


                          • #14
                            I hope this helps...

                            http://dol.gov/esa/regs/compliance/w...EF=whdfs19.htm
                            ========================================

                            "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

                            Comment


                            • #15
                              Thanks allot for all of your help guys, you all have been very helpfull, after gathering all the info it seems that i am exempt from the over time pay oh well you dont know ifyou dont ask questions right? thanks again!

                              Comment

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