Exempt vs. Non-Exempt - How do you tell the difference? Minnesota

[gemgirl]

I am in "inside salesperson". My hours are 8-5, Monday through Friday and I am paid a set salary. I do not punch in or out. I never leave my office. I have a set book of business and call (not visit, but call) my clients semi-annually to "check up" on them. About 20% of my calls are considered to be sales calls, the rest are retention only.

My question is: would my job be considered Exempt or Non-Exempt? Everything I have found online so far leads me to belive my job should be Non-Exempt.

Does anyone have any further insight or clarity for me? Any help is greatly appreciated.

[DAW]

Sure. It is not possible for Inside Sales per se to be directly Exempt from overtime. The direct exemption from overtime is Outside Sales only. Of course, this could be a read the fine print type of answer. There are something like 100 or so exceptions from minimum wage, overtime or both. Example, sales people for an Auto Dealer are nominally exempt from overtime but not from minimum wage. There is a Retail/Service Establishment exception that is sort of exempt, but more accurate could be described as alterting the overtime rules. Some people both sell and supervise, and if they follow the Executive exception rules, they could be exempt under that exception. Once in a very blue moon someone who is nominally inside sales is covered by the Administrative exception. If you are not doing much selling, there is some chance that your "retention" activities fall under that.

What exactly are your job duties? I know what "retention" means to me, but I do not know what "retention" means to you. What do you sell? Where do you sell? Is there anything else you do that is not selling?

We basically need to figure out which of the 100 or so FLSA exception you might be subject to. Inside Sales is potentially more complicated then most jobs.

[gemgirl]

Thank you for your quick reply! I sell websites to a "captured audience" (meaning if they want to buy a website for their business, they need to buy it from me). It's not retail, but B2B. My entire day is spent on the phone talking to my clients, so I don't think I would qualify as doing administrative duties. I also don't supervise anyone.

Rentention only means that while I still work with that client on a regular basis and help them out and make sure they are happy with their website, I have nothing left to sell to them. I guess technically I'm "always selling" because I want my clients to keep their website with us. Does that make sense?

[DAW]

Sounds vanilla non-exempt. You should be subject to minimum wage and overtime rules.

None of the obvious exceptions seem to apply.
- Outside Sales does not apply because you are not going door-to-door to sell product.
- Retail/Service exception does not apply because you are selling over the phone.
- Administrative exception is always a stretch, but what you said does not sound close.
- Executive exception requires supervising at least two full time persons (could be FTE).
- Professional exception generally requires not only advanced degrees but that the advanced requires are needed for the job.
- There are no industry specific exceptions subject to phone sales or support.

[gemgirl]

Thank you very much for your insight. I would agree that my job doesn't fall under any of the tasks you mentioned above.

My coworkers and I (about 20 of us total) have not been receiving overtime pay. Whenever we mention to our supervisors that we've put in more than 40 hours in a work week (which is usually every week) they say to us "well, you're salary - get used to it".

Is there a way I can find out with absolutely certainty that I should be receiving overtime pay? And if so, how do I go about letting my company know that what they're doing is illegal?

Thanks again!

[Pattymd]

The only way to be 100% certain is to file a claim for overtime pay with the state (preferably) or federal Dept. of Labor and see what they say after they investigate with the employer.

DAW and I are probably about 99% certain.

[gemgirl]

Sorry I didn't reply sooner

Thank you for your response! I'm glad I have a next step, as I wasn't sure what to do. I'm sorry I did not reply sooner. I was debating whether or not I wanted move forward with this issue. My company always acts like it's one step away from bankrupcy or lay-offs and I haven't wanted to do anything that could cause that to happen.

However, things at my company are getting progressivly worse. They are now requiring us to attend weekly meetings at an outside organization. The company considers this to be training for us. We attend these meetings during company time and are paid to attend. However, if there is any prep work to be done for these meetings (writing a speech, fulfulling the duties of an assigned role, etc) we are told we need to do it on "our own time". This frustrates me because it's a job requirement that I participate, but yet I'm not getting paid for the extra hours I'm putting in. I commented to my supervisor that I would like to be given time at work to prepare for these required roles and I was told "You are salary. You'll just need to stay late or do it at home".

Before I contact the Dept of Labor, I'm wondering if you know if I will be able to stay anonymous. My company would not hesitate to find a reason to fire me, as they tend to fire people for "having a bad attitude" or "not beliving in the company".

I just really feel stuck right now. If the company is doing something illegal, I would like that to be corrected and receive the correct reimbursement for my work. However, I don't want to get fired...again, I much apprciate any help or advice!

[Betty3]

There really is no way to file a claim/complaint with the DOL & remain anonymous. You can't be legally terminated for filing a claim with the DOL. If you are, you do have some recourse.

[Pattymd]

It is highly likely that the "homework" involved in your training is also compensable time.