Labor & Employment Law Daily Wrap Up, WAGE-HOUR—EXEMPTIONS—S.D. Ohio: Court denies summary judgment regarding overtime claim as to technical consultants, (Sep 29, 2026)

By Ronald Miller, J.D.

The issue was whether making sales constitutes the primary duty of the employer’s technical consultants.

In a suit brought by the U.S. Department of Labor alleging that an employer violated the FLSA’s overtime requirements by classifying technical consultants as exempt from overtime, a federal district court in Ohio denied both parties’ motions for summary judgment regarding the overtime claim. The court found that under the employer’s evidence, the consultants obtained orders, received credit for those sales, protected existing business, and performed any manual tasks only incidentally, such that sales were their primary duty. On the other hand, their customer visits were dominated by inspection, testing, calibration, troubleshooting, cleaning, repair, programming, and formula-based replenishment under agreements negotiated by others, such that they performed service or inventory management, not sales. Similar disputes prevented summary judgment under the FLSA’s administrative exemption as well (United States Department of Labor v. Washing Systems, LLC, No. 1:21-CV-154 (S.D. Ohio Sept. 28, 2026)).

The employer sells chemicals and related products used in commercial and industrial laundry operations, as well as chemical-dispensing systems and services connected to the use of those systems. Its customers include laundries, uniform and linen suppliers, hotels, resorts, and healthcare facilities.

Technical consultants. The employer employs technical consultants who are assigned customer accounts and specific geographic territories. The consultants ordinarily work away from the company’s main office and make recurring visits to customer plants. Consultants are paid salaries and various bonuses, commissions, or incentives, but they are not paid an overtime premium.

The parties disagree about the character and relative importance of their work. According to the employer, consultants obtain orders, receive sales credit, develop new business, protect existing business, make product and process recommendations, and perform any equipment-related work only rarely or as an incident of their own sales.

Field service position. On the other hand, the DOL described their work as a field service position. According to DOL, consultants regularly inspect, clean, repair, replace, program, and calibrate equipment; respond to service calls; and replenish chemicals according to historical usage. DOL also pointed to evidence that company management or specialized sales personnel negotiated large chain agreements, and that technical consultants had no role in those agreements.

The employer disputed the frequency of manual work, the reliability and meaning of the Weekly Activity Reports, and DOL’s characterization of the company’s sales processes.

DOL brought this action against the employer alleging that it violated the FLSA’s overtime and recordkeeping provisions by classifying technical consultants as exempt, paying no overtime premium, and failing to keep adequate records of hours worked.

Outside-sales exemption. The FLSA exempts an employee “employed... in the capacity of outside salesman.” 29 U.S.C. § 213(a)(1). The implementing regulation requires that the employee’s primary duty be making sales within the definition of 29 U.S.C. § 203(k) or obtaining orders or contracts for services, and that the employee customarily and regularly perform that duty away from the employer’s place of business. 29 C.F.R. § 541.500(a).

The parties agreed that the consultants customarily and regularly work away from the employer’s place of business. The issue was whether making sales constitutes their primary duty. On that question, the court found the Sixth Circuit’s ruling in Killion v. KeHE Distributors, LLC, 761 F.3d 574 (6th Cir. 2014), instructive. There, representatives serviced stores, monitored inventory, transmitted replenishment orders, and solicited business. The Sixth Circuit reversed summary judgment for the employer because a jury could have concluded that the employees managed inventory (rather than made sales) and that their promotional work supported sales made by account managers.

Primary duty. The record in this case presented materially similar factual questions. A factfinder could conclude that the consultants obtained each account’s orders, received credit for those sales, used their technical expertise to retain and expand business, and performed any manual tasks only incidentally. Under that view, sales could be the consultants’ primary duty.

Similarly, a factfinder could find that recurring visits were dominated by inspection, testing, calibration, troubleshooting, cleaning, repair, programming, and formula-based replenishment under agreements negotiated by others. Under that view, the consultants may have performed service or inventory management, not sales.

In light of these genuine disputes of fact and competing evidence, the court would be required to determine how often manual work occurred, who made the operative sales, and whether customer-support work furthered each consultant’s own sales. Thus, neither party was entitled to summary judgment on the outside-sales exemption.

Administrative, combination, and HCE exemptions. Next, the court declined to accept DOL’s contention that the employer had waived alternative exemptions by failing to plead them specifically. First, the employer’s answer identified exemption defenses. Further, its interrogatory response asserted that the consultants performed work directly related to customers’ general business operations and exercised discretion and independent judgment on matters of significance. Under these circumstances, the defenses were not waived.

Administrative exemption. The administrative exemption requires, among other things, a primary duty of office or nonmanual work directly related to management or general business operations and the exercise of discretion and independent judgment on matters of significance. Here, the parties disputed whether the consultants’ primary duty was nonmanual consulting or regular manual service, whether recommendations concerned customers’ general business operations or the employer’s production and sale of its own products and services, and whether consultants chose among significant courses of action or applied prescribed techniques and standards. These disputes prevented judgment for the employer under the administrative exemption.

Combination exemption. The combination exemption permits an employee to qualify based on a combination of otherwise exempt duties. 29 C.F.R. § 541.708. But because the court could not determine the relevant combination until a factfinder decides which sales and administrative activities were exempt and whether they collectively formed the employee’s primary duty, summary judgment was unavailable on this theory.

HCE exemption. The HCE exemption requires a primary duty that includes office or nonmanual work and the customary and regular performance of at least one exempt executive, administrative, or professional duty. 29 C.F.R. § 541.601(a), (d). Here, the employer identified several consultants whose compensation it claims exceeded the applicable threshold. However, the court determined that the genuine disputes over manual work and exempt administrative duties precluded summary judgment under § 541.601.

While the court found that (1) the defendant was an employer and covered enterprise under the FLSA during the relevant period; and (2) the technical consultants identified in this action were covered employees, the court denied both parties’ motions for summary judgment regarding the overtime claim.

The case is No. 1:21-CV-154.

Judge: Barrett, M.

Attorneys: Mary Margaret Frey for U.S. Department of Labor. Anthony P. McNamara (Jackson Lewis) for Washing Systems, LLC.

Companies: United States Department of Labor; Washing Systems, LLC

Cases: WageHour Exemptions Overtime OhioNews