Eastern District of Virginia Judge Cacheris Expands Upon “Customarily and Regularly Away” Prong Of Outside Salesperson Analysis
Following-up on his decision on January 7th 2014 granting summary judgment to Prospect Mortgage regarding the applicability of the outside sales exemption to one loan officer, Judge James C. Cacheris of the Eastern District of Virginia has issued two more decisions on similar motions for summary judgment by the employer, granting a second one and denying a third through analyses which highlight both the fact-intensive, case-by-case nature of exemption analysis and the summary judgment standard used to determine when material issues of fact are present, requiring trial. Dixon v. Prospect Mortg., LLC, 2014 U.S. Dist. LEXIS 4725 (E.D. Va. Jan. 14, 2014); Cougill v. Prospect Mortgage, LLC, 2014 U.S. Dist. LEXIS 4659 (E.D. Va. Jan. 14, 2014).
In Dixon, Judge Cacheris, consistent with his Hartman decision, ruled that because plaintiff testified that she “spent approximately half of her time each week outside of the office contacting referral sources . . . include[ing] attending seminars and trade shows, meeting with financial planners and realtors, and giving presentations” the exemption applied as a matter of law. The Court also observed that the policy considerations underpinning the exempting of outside sales people set forth seventy years ago in Jewel Tea Co. v. Williams, 118 F.2d 202 (10th Cir. 1941) remain applicable today. Contrastingly, in Cougill the Court could not grant the motion as it had in the other cases because Plaintiff testified that she spent “‘99.9 percent’ of her time inside the office.”
This series of decisions largely supports a practical interpretation of the outside sales exemption criteria, and specifically the customarily and regularly away standard: simply put, an employee does not have to be in the field the majority of the time in order to qualify, and indeed the “twenty-five to thirty percent” testified to in Hartman was deemed sufficient. The exemption also highlights the specificity with which an exemption defense must be approached and demonstrated in litigation.