WINTER 2025

32THE DISTRIBUTOR’S

32THE DISTRIBUTOR’S LINKJim TruesdellJames Truesdell is Chairman of Brauer Supply Company, a distributor of specialtyfasteners, insulation, air filtration, and air conditioning with headquarters in St. Louis.Mr. Truesdell is adjunct professor at Saint Louis University and Webster University.An attorney and frequently published writer, he is the author of “Total QualityManagement: Reports From the Front Lines”.OUTSIDE SALES AND OVERTIME - STATUS UNDERTHE FAIR LABOR STANDARDS ACTDistributors and industrial businesses havetraditionally employed outside sales representatives tokeep in close personal contact with customers. Whiletechnology is changing how their form of sales supportis delivered, there will always be the need for someonewho can develop a relationship with the customer with aperiodic visit to understand the nature of problems thatcustomer faces in his or her business. From a careergrowth standpoint it has always been the conventionalwisdom that being a successful outside rep is the ticket tomaking more money and increasing your influence in theorganization. Those who bring in the business often have aunique status within their companies. This is all the morereason to question the assertions being brought forth ina case coming before the Supreme Court, E.M.D.Salesv. Carrera. It deals with a claim for overtime by a workerwho is questioning the employer’s categorization of himas falling within the “outside sales” overtime exemptionof the Fair Labor Standards Act (FLSA). It has caught theattention of numerous business trade associations aspotentially affecting all FSLA exemptions and increasingliability risk for employers.The case involves a food products distributor (E.M.D.)who chose not to pay Carrerra and two other workers whoworked over forty hours in a week where the companydescribed them as being qualified for the “outsideCONTRIBUTOR ARTICLEsalesperson” exemption under the FLSA. The Districtcourt ruled for the employees by finding that E.M.D.had not proved the exemptions by “clear and convincingevidence”. This is a departure from the normal civil casestandard of a “preponderance of the evidence” whichhas been the test heretofore. When the Fourth CircuitCourt of Appeals confirmed the decision by following itsown precedent it set things up for arguments before theSupreme Court .Brian Wild of the National Association of Wholesalers(NAW) said this has the potential to affect the way outsidesalespeople must be paid and noted that other circuitshave only required employers to meet the preponderanceof the evidence standard. NAW’s Legal Policy Centerhas filed a friend of the court brief which discusseswho outside salespeople are, why they are important towholesaler and other kinds of businesses, and talkingabout the complexity of tracking hours worked in the kindof activities such workers undertake. The brief argues thatFLSA exemptions are key to the functioning of the Act tothe same extent as are its minimum wage and overtimeprovisions.The statute itself clearly states that the test employersmust meet should not be raised to a clear and convincingevidence standard unless Congress clearly states that inthe law.CONTINUED ON PAGE 102

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