Litigating California Wage & Hour and Labor Code Class Actions

In 1999, in Ramirez, 51 the California Supreme Court held that the difference in the wording
of the federal and state outside sales exemptions was intentional and that California
intended to have an exemption narrower than the FLSA’s. In particular, the inclusion of the
phrase “more than half the employee’s working time” in the California definition of an
outside salesperson indicated that employees could not qualify for the California exemption
if they consistently spent more than one-half their time on work other than “outside sales”
work. 52 The Court also noted that there was no reference in the California definition to work
“incidental to or in conjunction” with an employee’s sales work, which the court interpreted
as excluding any such “incidental” work from the 50 percent standard. 53 Furthermore, if the
employer could show that its reasonable expectations were that its employees would spend
the majority of their time engaged in outside sales and that an employee violated those
expectations by not doing so, then the employer could still take advantage of the
exemption. 54
The facts of the Ramirez case were relatively straightforward and thus did not provide the
Court with the opportunity to address more nuanced situations. The job at issue in Ramirez
had employees spending virtually all their work time away from the employer’s place of
business and doing essentially the same small set of tasks every day—i.e., driving to the
homes of customers to deliver bottled water and attempting, where possible, to sell them
additional water products. The job duties were easily divided into “sales” and “delivery,”
and the court merely held that more time had to be devoted to sales than to delivery for the
delivery salespersons to qualify as outside salespersons. 55
Ramirez left open the following questions:
What does it mean “customarily and regularly” to spend more than one-half of the
work time on outside sales? “Customarily and regularly” is defined in the FLSA
regulations as “more than occasionally but less than constantly.” 56 If an employee
has a habit of often spending two or three days working away from the employer’s
place of business, but spends the overall majority of all work time at the employer’s
51
52
53
54
55
56
20 Cal. 4th 785 (1999). This decision was discussed, supra, in the context of the executive exemption.
Id. at 797-98.
Id. at 797.
Id. at 802.
Id. at 801.
See Baca v. United States, 1 Wage & Hour Cas. 2d (BNA) 1066 (U.S. Fed. Cl. 1993) (doing exempt duties only onethird
of the total work time, but on a regular recurring basis, qualified as performing the task “customarily and regularly”);
Shriner v. Smurfit-Stone Container, 2006 Mont. Dist. LEXIS 606 (D. Mont. Aug. 30, 2006) (employee who spent less
than half of his total work time supervising employees still “customarily and regularly” supervised employees because
“his role as a relief supervisor was expected, relied upon and regularly performed” and was his role “on more than
isolated or occasional incidents”).
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