A new U.S. Department of
Labor (DOL) opinion letter says that solicitors who raise money for charitable organizations
don’t qualify for the outside sales exemption from overtime under the Fair
Labor Standards Act. The opinion was requested by a for-profit fundraising
business that employs residential solicitors, who canvas for donations in the
same geographical area on a regular basis, and roaming solicitors, who travel
cross-country to fund-raise. All of the solicitations occur outside of the
employer’s place of business. Residential solicitors report to the office each morning
to receive materials needed for the solicitations and report back to the office
at the end of the day. Roaming solicitors travel as a team and attend staff meetings
in the evenings about the solicitations.
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The DOL explained that an
exempt outside sales employee must have the primary duty of making sales, away
from the employer’s place of business, that involve obtaining orders or
contracts for services or the use of facilities. But the DOL rejected the idea that
charitable soliciting amounts to sales work. Said the DOL: “Soliciting promises
of future charitable donations or ‘selling the concept’ of donating to a
charity does not constitute ‘sales’ for purposes of the outside sales exemption.”
The opinion letter, FLSA2006-16, is available at http://www.dol.gov/whd/opinion/opinion.htm.