(a) Promotion work is one type of activity often performed by
persons who make sales, which may or may not be exempt outside sales
work, depending upon the circumstances under which it is performed.
Promotional work that is actually performed incidental to and in
conjunction with an employee's own outside sales or solicitations is
exempt work. On the other hand, promotional work that is incidental to
sales made, or to be made, by someone else is not exempt outside sales
work. An employee who does not satisfy the requirements of this subpart
may still qualify as an exempt employee under other subparts of this
rule.
(b) A manufacturer's representative, for example, may perform
various types of promotional activities such as putting up displays and
posters, removing damaged or spoiled stock from the merchant's shelves
or rearranging the merchandise. Such an employee can be considered an
exempt outside sales employee if the employee's primary duty is making
sales or contracts. Promotion activities directed toward consummation
of the employee's own sales are exempt. Promotional activities designed
to stimulate sales that will be made by someone else are not exempt
outside sales work.
(c) Another example is a company representative who visits chain
stores, arranges the merchandise on shelves, replenishes stock by
replacing old with new merchandise, sets up displays and consults with
the store manager when inventory runs low, but does not obtain a
commitment for additional purchases. The arrangement of merchandise on
the shelves or the replenishing of stock is not exempt work unless it
is incidental to and in conjunction with the employee's own outside
sales. Because the employee in this instance does not consummate the
sale nor direct efforts toward the consummation of a sale, the work is
not exempt outside sales work.