Litigating California Wage & Hour and Labor Code Class Actions

place of business, would that qualify as “customarily and regularly” spending more
than half the work time outside?
How does one attribute time spent before a sale preparing to make a sales call or
time spent after a sale completing the paper work? The Ramirez decision
mentions that the employer argued it would be absurd to exclude those tasks from
the “outside sales” calculation, but the California Supreme Court did not explain
how those duties should be analyzed under the exemption.
What constitutes “away from the employer’s place of business”? Clearly delivering
water to a customer’s homes qualifies, but what if the employee is in a job where
he is making customer contact by telephone? Is any time selling outside the
employee’s designated “office” considered time “away from the employer’s place of
business”?
How does an employer enforce reasonable expectations that its employees spend
the majority of their time outside selling? Where the employer encourages selling,
but allows the employees to make sales any way they want without tracking their
movements, what is the employer’s reasonable expectation as to “outside sales”
activity?
Because all these questions remain open, there is still a great deal of litigation over the
outside sales exemption. In particular, there have been several class actions addressing
whether bank branch loan originators qualify as outside salespersons. Opinions arising
from these cases may clarify some of the issues Ramirez left open.
Separate from the substantive issue of whether a particular employee meets the outside
sales exemption, there has been significant litigation over whether outside sales exempt
status can be decided collectively on a class basis. Courts have been more willing to deny
class certification in these cases where the only question is whether employees who
undisputedly focus on sales spend enough of their time “outside” to meet the exemption.
Most notably, in a case in which Seyfarth Shaw represented the prevailing defendant, the
Ninth Circuit, in Vinole v. Countrywide Home Loans, Inc., 57 affirmed a district court order
that the outside sales exempt status of branch loan originators could not be litigated on a
collective basis. There was no evidence that Countrywide required its employees to spend
a certain amount of time inside, and there was great variation in the testimony as to how
different loan originators actually spent their time. The Ninth Circuit explained how this
made class certification inappropriate:
57
571 F.3d 935 (9th Cir. 2009).
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