Content Last Revised: 4/23/04 ---DISCLAIMER---

29CFR541.504 - Drivers who sell.

• Section Number: 541.504
• Section Name: Drivers who sell.

    (a) Drivers who deliver products and also sell such products may 
qualify as exempt outside sales employees only if the employee has a 
primary duty of making sales. In determining the primary duty of 
drivers who sell, work performed incidental to and in conjunction with 
the employee's own outside sales or solicitations, including loading, 
driving or delivering products, shall be regarded as exempt outside 
sales work.
    (b) Several factors should be considered in determining if a driver 
has a primary duty of making sales, including, but not limited to: a 
comparison of the driver's duties with those of other employees engaged 
as truck drivers and as salespersons; possession of a selling or 
solicitor's license when such license is required by law or ordinances; 
presence or absence of customary or contractual arrangements concerning 
amounts of products to be delivered; description of the employee's 
occupation in collective bargaining agreements; the employer's 
specifications as to qualifications for hiring; sales training; 
attendance at sales conferences; method of payment; and proportion of 
earnings directly attributable to sales.
    (c) Drivers who may qualify as exempt outside sales employees 
include:
    (1) A driver who provides the only sales contact between the 
employer and the customers visited, who calls on customers and takes 
orders for products, who delivers products from stock in the employee's 
vehicle or procures and delivers the product to the customer on a later 
trip, and who receives compensation commensurate with the volume of 
products sold.
    (2) A driver who obtains or solicits orders for the employer's 
products from persons who have authority to commit the customer for 
purchases.
    (3) A driver who calls on new prospects for customers along the 
employee's route and attempts to convince them of the desirability of 
accepting regular delivery of goods.
    (4) A driver who calls on established customers along the route and
persuades regular customers to accept delivery of increased amounts of 
goods or of new products, even though the initial sale or agreement for 
delivery was made by someone else.
    (d) Drivers who generally would not qualify as exempt outside sales 
employees include:
    (1) A route driver whose primary duty is to transport products sold 
by the employer through vending machines and to keep such machines 
stocked, in good operating condition, and in good locations.
    (2) A driver who often calls on established customers day after day 
or week after week, delivering a quantity of the employer's products at 
each call when the sale was not significantly affected by solicitations 
of the customer by the delivering driver or the amount of the sale is 
determined by the volume of the customer's sales since the previous 
delivery.
    (3) A driver primarily engaged in making deliveries to customers 
and performing activities intended to promote sales by customers 
(including placing point-of-sale and other advertising materials, price 
stamping commodities, arranging merchandise on shelves, in coolers or 
in cabinets, rotating stock according to date, and cleaning and 
otherwise servicing display cases), unless such work is in furtherance 
of the driver's own sales efforts.