Outside commissioned salespersons are excluded from the Act
under the outside commissioned salesperson exclusion contained in Section
35A-4-205(1)(p)
unless all of the following "traveling or city salesperson" conditions
apply:
(1) The Salesperson is Engaged
on a Full-Time Basis.
Full-time under this section means the salesperson devotes at
least 80% of his or her working time in any quarter to the solicitation of
orders for one employer. This is true even if the salesperson works for the
employer less than 40 hours per week. For example, a salesperson who works only
20 hours a week and spends 80 percent or more of that time working for one
principal is engaged on a full-time basis.
(2) The Salesperson Solicits Orders From
Wholesalers, Retailers, Contractors or Operators of Hotels and Restaurants.
The salesperson must solicit orders from certain types of
customers. Generally, the following types of customers are not included:
manufacturers, schools, hospitals, churches, institutions, municipalities and
state and federal governments. However, a clearly identifiable and separate
business carried on through such a customer, such as a bookstore or gift shop
would be included as a "retailer." The salesperson must solicit orders from the
following types of customers:
(a)
Wholesalers who buy merchandise in comparatively large quantities and sell such
merchandise in smaller quantities to jobbers and retailers for the purpose of
resale.
(b) Retailers who sell
merchandise to the ultimate consumers.
(c) Contractors who, for a fixed price,
undertake the performance of work on an independent basis, such as construction
contractors and certain service organizations. These include, among others,
electrical, plumbing, painting, building, window washing and delivery service
contractors.
(d) Operators of
hotels, restaurants or other similar establishments. The phrase "other similar
establishments" refers solely to establishments similar to hotels and
restaurants and usually is limited to establishments whose primary function is
the furnishing of food, lodging, or both food and lodging.
(3) The Salesperson Takes Orders for
Merchandise for Resale or Supplies Used in Business.
(a) Merchandise for resale includes goods,
wares and commodities that ordinarily are the objects of trade and commerce and
that are purchased for resale. This term refers specifically to tangible
materials that do not lose their identities between the time of purchase and
the time of resale.
(b) Supplies
for use in the customer's business operations means articles consumed in
conducting or promoting the customers' businesses. Generally the term
"supplies" includes all tangible items that are not "merchandise for resale" or
capital items. Services such as radio time and advertising space, are
intangible items and not within the definition. However, calendars, advertising
novelties, etc., used by the advertiser in his business constitute
"supplies."
(4) The
contract of service contemplates that substantially all of the services are to
be performed personally by the worker. This means that the services to which
the contract relates will not be delegated to any other person by the worker
who undertakes under the contract to perform such services; and
(5) The worker does not have a substantial
investment in facilities used in connection with the performance of his or her
services. The facilities include equipment and premises available for the work
but does not include such tools and equipment or clothing as are commonly
provided by employees; and
(6) The
services are part of a continuing relationship with the person for whom the
services are performed.
