dissenting:
Consider the implications of the majority’s decision by changing the facts a bit. Suppose the owner of a landscaping business sends his employees to customers’ homes to cut grass, trim bushes, and perform various other yardwork. The employees spend approximately 9 to 12 hours per day in the performance of these duties. At the end of each day, the employees are required to spend a half hour canvassing the customers’ neighborhoods, offering the business’ services to other homeowners.
The majority’s analysis would mandate a finding under these facts that the employees are outside salesmen and therefore exempt from the Minimum Wage Law’s provisions. The legislature, however, did not intend the outside salesman exemption to be so generous. The Minimum Wage Law was enacted in part to minimize the State’s burden of supporting its inhabitants at a minimum standard of living. See 820 ILCS 105/2 (West 1992). If the employees in my hypothetical would be subject to the outside salesman exemption, then employers would be able to claim the exemption for almost all occupations involving outside work through minor adjustments in their employees’ job duties. Employers would thus reap the benefits of substantial nonsales labor without paying overtime or the minimum wage, which in turn would place the State in a position to make up the shortfall through public aid.
The majority nonetheless finds itself constrained from considering policy implications because of the "outside salesman” definition’s plain meaning. I would think that if any phrase could be subject to different interpretations, it would be "regularly engaged in making sales.” In particular, examples from common usage show that "regular” is assigned a peculiar meaning to fit the circumstances.
Consider the manufacturer’s admonishment on a tube of toothpaste: "see your dentist regularly.” If someone visits the dentist once every five years, has he heeded this admonishment? Most of us would think not. But why? The dictionary meaning of "regular” is "steady or uniform in course, practice, or occurrence.” Webster’s Third New International Dictionary 1913 (1986). Using this definition, it might be said that the person who visits his dentist every five years does so regularly, inasmuch as his visits recur in a steady or uniform manner. The reason we insist that this person does not visit the dentist regularly is that we have assigned a particular meaning to "regular” as applied to dental visits, which meaning the dictionáry cannot capture.
The majority’s claim that "regularly engaged in making sales” has a plain meaning is therefore false, and the meaning it attaches to that phrase does violence to the Minimum Wage Law’s remedial purposes. But it is not enough to criticize; for, as the saying goes, it is better to light a candle than curse the darkness. There is a better way to interpret the "outside salesman” definition, one that would appropriately restrict the availability of the exemption.
Where there is no case law construing a state labor statute, it is the policy of this court to consider decisions construing a substantially similar federal statute. Bernardi v. Village of North Pekin, 135 Ill. App. 3d 589, 482 N.E.2d 101 (1985). The federal minimum wage statute, the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq. (1994)), exempts outside salesmen from its purview (See 29 U.S.C. § 213(a)(1) (1994), and the Department of Labor has promulgated a definition of "outside salesman” for the FLSA’s purposes that is substantially similar to the state definition. See 29 C.F.R. § 541.5 (1995). In view of the purposes underlying the Minimum Wage Law and the FLSA (compare 820 ILCS 105/2 (West 1992) with 29 U.S.C. § 202 (1994)), the state definition of "outside salesman” should be read in a manner consistent with the federal definition.
Under the federal definition, a route salesman will not be deemed exempt from minimum wage provisions unless his employer can establish that his chief duty or primary function is to make sales. See 29 C.F.R. § 541.505(a) (1995). To determine whether this "primary function” test has been met, the courts consider the nature of the job as a whole, taking into account the actual amount of time a route salesman spends performing various sales and nonsales duties, the amount of autonomy an employee has in making sales transactions, and whether the employee’s compensation is tied to his sales ability. See generally Skipper v. Superior Dairies, Inc., 512 F.2d 409 (5th Cir. 1975); Hodgson v. Klages Coal & Ice Co., 435 F.2d 377 (6th Cir. 1970); Jewel Tea Co. v. Williams, 118 F.2d 202 (10th Cir. 1941); Hodgson v. Krispy Kreme Doughnut Co., 346 F. Supp. 1102 (M.D.N.C. 1972).
The primary function test, as applied to route drivers, is entirely consistent with the Minimum Wage Law’s purposes. Under the Minimum Wage Law, outside salesmen are exempt from minimum wage and overtime provisions; outside deliverymen are not. Consistent with the rule that exemptions from remedial statutes should be narrowly construed (Krispy Kreme Doughnut Co., 346 F. Supp. at 1103), the exemption should be available only if a route driver position looks more like a sales position than a delivery position. Unlike the majority’s plain meaning test, the primary function test enforces this limitation.
Applying the primary function test to the facts in this case, DeWig was not an outside salesman as a matter of law. He spent from six to eight hours a day essentially stocking shelves (20 to 25 outlets per day multiplied by 20 minutes per stop), and had to travel from Sandwich to Chicago to service his customers. Given that DeWig worked approximately 11 hours per day, it may be inferred that the greater portion of his time was spent in the performance of nonsales duties.
In addition, the record shows that DeWig was entitled to commissions if he made sales over a base weekly amount, but for the large majority of weeks during his employment he received only the base amount. This might suggest that DeWig was a poor salesman or it might suggest that the commission portion of Landshire’s wage structure was based upon unattainable sales goals. If the latter view is taken, the finder of fact could reasonably infer that, in practice, Landshire paid its route salesmen a set wage that was not tied to their salesmanship skills.
If Landshire indeed hired DeWig for the purpose of making sales and if it can be inferred that DeWig spent little time engaged in sales activities, it may fairly be questioned why Landshire continued to employ him for a period of more than 60 weeks. One answer might be that Landshire received a benefit from DeWig’s continued employment in the form of the deliveries he made to Landshire customers. Whether this was indeed the primary benefit Landshire received by employing DeWig should be decided by the finder of fact.
For the foregoing reasons, I respectfully dissent.