Daily Development for Wednesday, September 20,
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
BROKERS; REAL ESTATE SALES REPRESENTATIVES; FAIR LABOR STANDARDS: Real estate salespersons hired by a residential home builder to sell homes in its communities are not “outside salespersons” and therefore not subject to the applicable exemption under the Fair Labor Standards Act (“FLSA”) and are not exempt from the minimum wage and overtime pay requirements of FLSA.
Billingslea v. Brayson Homes, Inc., 2006 WL 562198 (N.D.Ga., March 7, 2006).
Defendant is residential home builder that purchases parcels of land to be developed and subdivided into small parcels of land for form new subdivision communities. Defendant hired Plaintiffs to sell homes in its communities. Each plaintiff was assigned to work in a specific community, and was responsible for selling homes on the various subdivided lots within that community. Plaintiffs were expect to greet potential home buyers at the model home sales centered located in each community. As part of the hiring process, each of Plaintiffs signed an “Independent Contractor Agreement” with Defendant. Based on Plaintiffs’ job activities, Defendant classified Plaintiffs as “outside sales persons” exempt from minimum wage and overtime pay requirements of the FLSA. Plaintiffs brought an action to recover unpaid wages and overtime. Defendant moved for summary judgment
The United State District Court of the Northern District of Georgia denied Defendant’s motion for summary judgment because it found that Plaintiffs were not outside salespersons. The District Court concluded this because they found that the evidence showed that Plaintiffs’ primary duty was not to make sales away from their employer’s place of business, but to assist in making sales within their employer’s place of business, which the District Court construed to be the entire subdivision site to which they were assigned and from which they could not leave during the assigned work day.
Comment: Although the editor has listed this case under the “broker” heading, obviously these were not brokers, as they worked for a sole employer for a fixed wage.
Comment 2: The case apparently was not appealed. But the Westlaw entry has the briefs and other related documents for readers who wish to know more about this issue. It is likely that the finding that these parties are not “independent agents” will have consequences beyond wage and hour issues.
Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters. The same is true of all
commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 15 messages per work day.
Daily Developments are posted every work day.
subscribe, send the message
subscribe Dirt [your name]
To cancel your subscription, send the message
signoff DIRT to the address:
for information on other commands, send the
Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes
commercial and general real estate matters but also focuses specifically upon
residential real estate matters. Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the
signoff BrokerDIRT to the address:
DIRT is a service of the American Bar
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
To be removed from this mailing list, please go to
or send an email message to the address email@example.com,
with the text SIGNOFF BROKERDIRT in the body of the message. Problems
or questions should be directed to firstname.lastname@example.org.