While much litigation has concerned the applicability of the administrative exemption to loan officers, culminating in the Court of Appeals for the D.C. Circuit’s invalidation of the Department of Labor’s interpretation that they do not qualify for that exemption, loan officers with appropriate job duties and responsibilities may also qualify for the outside sales exemption, as demonstrated by a new decision from a Virginia federal court. Hartman v. Prospect Mortg., LLC, 2014 U.S. Dist. LEXIS 1661 (E.D. Va. Jan. 7, 2014).
In Hartman, plaintiff largely conceded at deposition that her job was to make sales, and thus the more contested issue in the litigation concerned whether Hartman was “customarily and regularly away” from the defendant’s place of business. Citing a 2007 opinion letter authored by Jackson Lewis Wage-Hour Practice Chair and former Wage and Hour Administrator, Paul DeCamp, and other authority regarding the meaning of the requirement that to be an exempt outside salesperson the individual must be “customarily and regularly away” within the meaning of 29 C.F.R. § 541.701, the Court concluded that plaintiff’s testimony that she spent “approximately twenty-five to thirty percent of her typical week outside of the office making contacts to bring in business” met this requirement as a matter of law.
Many employers may still analyze whether positions are exempt under the DOL’s prior regulations and their requirements that tasks occupy a specific percentage of an employee’s time. The primary duty tests implemented through the 2004 regulations are more functional, and employers must ensure they apply the current standards and case law interpreting such when making exemption determinations.