© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 89 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.496 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.497 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.498 However, it is the employer’s burden to establish that an employee travels away from the employer’s place of business with sufficient regularity to qualify for the exemption.499 Unlike the white collar exemptions, there is no salary basis requirement for outside salespersons under the FLSA. b. Massachusetts Outside Sales Exemption There are two distinct outside sales exemptions under the Massachusetts Minimum Fair Wage Law. The first, which exempts outside sales employees from both the Commonwealth’s minimum wage and overtime requirements, excludes outside sales from the definition of what constitutes an “occupation.”500 To qualify for this exemption, an individual must both (1) regularly sell products away from the employer’s place of business and (2) refrain from making daily reports or visits to the employer’s offices.501 While the statute does not define “daily reports” and there is no case law on this topic, a DLS opinion letter addressing this issue states that the daily reports must be in-person (and not merely electronic) in order to undermine an employee’s exempt status.502 Thus, an employee may still be exempt in Massachusetts if he or she calls or e-mails the employer every day. Attending weekly or monthly meetings at the employer’s offices is also permitted because such meetings are merely “incidental to and in conjunction with” the employee’s outside sales.503 2009) (denying employee’s motion for summary judgment where dispute of fact existed as to whether sales representative spent significant amount of his time leaving the model home to visit lots within development). 496 DOL Wage & Hour Opinion Letter FLSA2007-2 (Jan. 25, 2007). 497 Id. See also DOL Wage & Hour Opinion Letter FLSA2020-8 (June 25, 2020) (requirement of customarily and regularly away from employer’s place of business “requires only that the employees perform the tasks normally and recurrently every workweek”). 498 See Lipnicki v. Meritage Homes Corp., No. 3:10-CV-605, 2014 WL 923524, *8-9 (S.D. Tex. Feb. 13, 2014); Billingslea, 2007 WL 2118990, at *3-4. 499 See, e.g., Sullivan v. Dumont Aircraft Charter, LLC, No. 16-10713-DPW, 2019 WL 1082500, *16 (D. Mass. Mar. 7, 2019). 500 M.G.L. ch. 151, § 2. The Massachusetts minimum wage and overtime laws apply to any person employed “in an occupation.” M.G.L. ch. 151, § 1 (“It is hereby declared to be against public policy for any employer to employ any person in an occupation in this commonwealth at an oppressive and unreasonable wage . . . .”) (emphasis added). 501 M.G.L. ch. 151, § 2. The FLSA does not have a similar requirement, so outside sales employees may make daily visits to their employers’ places of business without losing their federal exemption. 502 DLS Opinion Letter MW-2002-025 (Dec. 16, 2002). 503 Id.
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