The outside sales exemption works differently from every exemption covered so far. Where the executive, administrative, and professional exemptions built on a three-part test — salary basis, salary level, and primary duty, as covered in Chapter 2 — outside sales asks only two things: what the employee’s primary duty actually is, and where the employee does that work. Under § 541.500, the employee’s primary duty must be either making sales within the meaning of section 3(k) of the Act, or obtaining orders or contracts for services or for the use of facilities for which a client or customer will pay consideration (payment). The employee must also be customarily and regularly engaged away from the employer’s place or places of business in performing that primary duty. The “outside” in outside sales is not incidental description — it is part of the legal test itself.

“Making sales” draws on the Act’s own definition in section 3(k): a sale includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition — most often the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property. The exemption reaches beyond selling physical goods, though. “Obtaining orders or contracts for services or for the use of facilities” covers employees who sell time on radio or television, solicit advertising for newspapers and other periodicals, or solicit freight for railroads and other transportation agencies. The word “services” extends the exemption even to an employee who sells or takes an order for a service that someone else — not that employee — will actually perform for the customer.

Work performed incidental to and in conjunction with the employee’s own outside sales counts as exempt work under § 541.500(b): incidental deliveries and collections (collecting payment from customers), writing sales reports, updating or revising a sales or display catalog, planning itineraries, and attending sales conferences all further the sales effort and do not pull the employee out of the exemption. The general primary-duty analysis governing this assessment is set out at § 541.700, covered in Chapter 2. What outside sales does not carry, unlike every exemption discussed to this point, is any salary requirement at all. Subpart G — the salary basis and salary level rules that governed the executive, administrative, and professional exemptions — “do not apply to the outside sales employees.” An outside sales employee can be paid straight commission, a draw against commission (an advance paid against future commission earnings), or any other arrangement, with no predetermined amount and no minimum dollar threshold, and still qualify.