88 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP With respect to the first criteria, “making sales” can include any “sale, exchange, contract to sell, consignment for sale, shipment for sale,” or other transaction involving goods, and can also include the transfer of property titles.492 Obtaining orders or contracts for services or for the use of facilities includes but is not limited to selling radio or television air time, soliciting advertisements for publications, and soliciting railroad freight.493 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.494 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.495 492 29 C.F.R. § 541.501(b). In Christopher v. SmithKline Beecham Corp., the U.S. Supreme Court rejected the argument that pharmaceutical sales representatives do not sell drugs, but instead promote them, because they are prohibited by law from selling prescription products directly to physicians or patients. 567 U.S. 142, 165-68 (2012). The Court found that the outside sales exemption requires a “functional, rather than a formal, inquiry [] that views an employee’s responsibilities in the context of the particular industry in which the employee works,” and concluded that a pharmaceutical sales representative’s work is “tantamount” to a sale in the pharmaceutical industry. Id.at 161. Since the Supreme Court’s decision in Christopher, the Circuit Courts have taken divergent approaches concerning whether, and to what extent, the decision applies beyond the pharmaceutical sales context. Compare Flood v. Just Energy Mktg. Corp., 904 F.3d 219, 230-31 (2d Cir. 2018) (holding that representatives who traveled to customers’ homes to persuade them to purchase energy products were subject to outside sales exemption and rejecting argument that Christopher must be “confined to the peculiarities of the pharmaceutical sales market”) with Hurt v. Com. Energy, Inc., 973 F.3d 509, 519 (6th Cir. 2020) (affirming jury verdict that employees performing highly similar sales work for same employer were not exempt and stating that “Christopher’s holding does not readily transfer to other industries” due to the “unique regulatory environment of the pharmaceutical industry”). However, in a recent opinion, the First Circuit endorsed the Second Circuit’s view in Flood that the Supreme Court’s holding in Christopher indeed applies beyond the pharmaceutical sales context. See Modeski v. Summit Retail Sols., Inc., 27 F.4th 53, 59 (1st Cir. 2022) (agreeing with Flood that holding in Christopher is “not limited to that case’s particular facts” and affirming grant of summary judgment in favor of employer after concluding that marketing company brand representatives, who sold products to customers in big-box stores, were subject to the outside sales exemption). 493 29 C.F.R. § 541.501(c). 494 29 C.F.R. § 541.502 (stating that “any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitation of sales is considered one of the employer’s places of business”). In addition, sales employees who occasionally telephone customers or meet with them at the employer’s offices do not lose their FLSA exemption so long as that conduct is incidental to or in conjunction with the employee’s bona fide outside sales activities. DOL Wage & Hour Opinion Letter FLSA2009-28 (Jan. 16, 2009) (“Activities such as making phone calls, sending e-mails, and meeting with clients in the office are considered exempt if performed incidental to or in conjunction with the agent’s outside sales activities.”). 495 29 C.F.R. § 541.502 (listing customer’s place of business or home as examples of locations that are “away from the employer’s place or places of business”). See DOL Wage & Hour Opinion Letter FLSA2020-8 (June 25, 2020) (concluding that salespeople who traveled to trade shows and big-box stores to sell their employer’s products in shows typically lasting 10 days were customarily and regularly engaged away from employer’s place of business). The classification of residential real estate sales jobs illustrates the distinction between the employer’s place of business and those locations that are considered “away from” the employer’s place of business. In analyzing the exempt status of such positions, the DOL and the courts have focused on whether the sales employees regularly leave a fixed location to meet clients and prospects at the place of the sale. Home sales employees operating from temporary sales offices in residential subdivisions are engaged “away from” their employer’s place of business when they show available lots within the subdivision to prospective buyers because the “units” are products for sale, rather than the employer’s place of business. See DOL Wage & Hour Opinion Letter FLSA2007-1 (Jan. 25, 2007); DOL Wage & Hour Opinion Letter FLSA2007-2 (Jan. 25, 2007). See also Billingslea v. Brayson Homes, Inc., No. 1:04-CV-00962-JEC, 2007 WL 2118990, *4-5 (N.D. Ga. Mar. 15, 2007) (holding home sales employees who spent considerable amount of time performing sales work outside assigned model homes properly classified as exempt); Tracy v. NVR, Inc., 599 F. Supp. 2d 359, 364 (W.D.N.Y.
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