Due to much confusion in the industry over the federal labor laws, NAMB has been pursuing clarification on behalf of their members for several years. On Sept. 14, 2005, they sent a letter to the DOL asking for specific guidance on the wage and hour exemptions.   

In response, the newly-issued four-page letter signed by Alfred B. Robinson, Jr., acting administrator for the Wage and Hour Division of the DOL, expressly states the DOL’s opinion that “sales force” mortgage loan officers do in fact qualify as exempt outside sales employees. 

According to NAMB, it is an extremely uncharacteristic move for the DOL to issue an opinion letter like this, and emphasized that it only came about as a result of heavy lobbying on the part of the NAMB leadership and their lobbyists and attorneys. 

Content of the letter 

The letter notes that NAMB’s request dealt specifically with mortgage loan officers/originators who:

• Perform their work primarily outside the employer’s offices;
• Meet with customers to sell mortgage loan packages;
• Are responsible for originating their own sales by contacting prospective clients and by developing and maintaining referral sources;
• Spend a significant amount of time away from their employer’s place of business in performing their principal duty of selling the loan products offered by their employer;
• Meet with prospective clients at locations other than the employer’s business, such as a client’s home or other locations;
• Meet with clients in person to sell mortgage loan packages, and their contacts with clients by telephone, mail and e-mail is adjunct to these in-person contacts;
• Obtain credit information and other necessary documentation for the loan application process;
• Make in-person calls on real estate agents and brokers, financial advisors, and other potential referral sources to develop borrower leads;
• Engage in marketing and promotional activities in support of their own sales; and
• Have considerable flexibility to set their working hours and to schedule the tasks they perform during the workday.

Further, the letter outlines NAMB’s opinion that “sales force” loan officers:

• Are “customarily and regularly” engaged away from the employer’s place of business and offices in their homes;
• Spend some time in the employer’s office taking loan applications, attending meetings, completing paperwork and preparing marketing and sales materials in support of their own sales efforts;
• Check and bring databases of loan products for sale and referral services up to date;
• Call, write or communicate by email with clients or prospects with whom the “sales force” loan officers have been dealing during their outside sales activities;
• Talk to such clients or prospects in the office about their particular loan transactions;
• Call, write or communicate by email with lists of prospective clients, loan product vendors, and referral sources with whom the “sales force” loan officers may not have had prior contact; and
• Prepare loan applications and other forms for loan sales initiated or negotiated by the “sales force” loan officers during outside sales activities. 

Regarding the employees who fit the above descriptions, the letter notes that the FLSA provides an exemption from the minimum wage and overtime requirements of the act for “any employee employed … in the capacity of outside salesman.” 

The DOL further defines that phrase as including any employee “whose primary duty is making sales within the meaning of section 3(k) of the Act, or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and who is customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty.” 

The letter states, “It is the position of the Wage and Hour Division that employees of finance companies who obtain and solicit mortgages may be exempt outside sales employees if they are ‘customarily and regularly engaged away from their employer’s place of business in obtaining mortgages from brokers and individuals.’”   

The Field Operations Handbook states that “Work incidental to the employee’s obtaining the mortgage, such as obtaining credit information from the mortgagor, before and after the sale would qualify as exempt work if done with respect to [the employee’s] own sales.” 

NAMB’s letter also listed several activities that employees may perform at the employer’s place of business in conjunction with outside sales work without losing the outside sales exemption. These activities included:

• Bringing a multiple listing book up to date;
• Calling prospects with whom the sales employee has been dealing during outside sales activities;
• Dictating or writing letters to such prospects;
• Talking to such prospects in the office about their particular transactions;
• Calling a list of prospective buyers or sellers of homes with whom the sales employee has had no prior contact;
• Preparing a contract and other forms required for a sale negotiated during the sales employee’s outside sales activity; and
• Talking to a “walk-in” prospect with whom the employee has had no prior contact and showing photographs and discussing terms on specific houses, if such activity results in subsequent outside sales activity with the prospect.

“You suggest that these duties are analogous to the tasks performed by the ‘sales force’ loan officers while at their employer’s place of business or their home office,” the letter states. “Based on the information you have provided, the ‘sales force’ loan officers appear to meet the requirements for the outside sales exemption.” 

The DOL cited the case of Olivo v. GMAC Mortgage to support their opinion that “sales force” loan officers may qualify for the outside sales exemption even though they may perform some activities at their employer’s place of business, so long as the inside sales activity is incidental to and in conjunction with qualifying outside sales activity. 

“Therefore, although each ‘sales force’ loan officer must be evaluated on an individual basis to determine whether he or she qualifies for the outside sales exemption, those employees whose job duties match the duties described above would be exempt from the minimum wage and overtime requirements of the FLSA,” the letter states. 

Open Letter