According to a new U.S.
Department of Labor (DOL) opinion letter, timeshare sales representatives don’t
qualify for the outside sales exemption from overtime because their workplace—the
resort—is the employer’s place of business.1 The DOL explained that one requirement for the outside
sales exemption is that the employee be “customarily and regularly engaged away
from the employer’s place or places of business in performing” his or her sales
duties. “Customarily and regularly” means the work is recurrently performed
every workweek and doesn’t include isolated or one-time tasks. To be “engaged
away from” the employer’s place of business usually means making sales at the
customer’s site or home.
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The DOL explained that
the resort is the employer’s place of business, particularly because the
employer retains a continuing business interest in the resort property even
after timeshares are sold—unlike, for example, a home developer who has no
interest once the properties in a subdivision are sold. The timeshare sales
employees here performed all of their work either in the employer’s sales
office or at the resort itself— and thus were not engaged away from the
employer’s place of business.
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1
FLSA2007-4