About the Company:

The company  is a leading SaaS provider of on-demand e-learning and performance support solutions for global enterprises, government, education, and small to mid sized businesses.  The company enables business organizations to maximize business performance through a combination of comprehensive e-learning content, on-line information resources, flexible learning technologies, and support services.

Position Location:

Virtual Offices within territory; Territories include Western US (CA, AZ or CO), Midwest (MO, IL, TN) and Northeastern US (MA, NH, CT)

Position Description:

The successful candidate will have experience and an established track record of successfully recruiting and managing regional sales teams.  The Director will lead a team of 6 to 8 Regional Account Executives (RAE) whose role it is to sell into Fortune 2000 companies.  The sales team roles are a combination hunter/famer.  Each RAE is provided with a solid customer base to begin with (approx 12 to 15 named accounts for renewal or upselling).  The new business development will require prospecting, cold calling, and face to face meetings with c-level executives.  Each of the targets have about six buying/entry points (IT, HR, Legal, Compliance, Sales, Environmental, and Health & Safety).  The Sales Director will be responsible for driving desired business growth, ensuring a very high level of customer satisfaction, leading and developing a high performance sales team, partnering with related sales, marketing and support resources and managing expenses to ensure comprehensive territory coverage and successful advancement of critical opportunities.

Qualifications:

• Bachelors Degree required.
• 8-10 years of sales experience in solution/consultative selling to Fortune 2000 companies, interfacing with C-level executives.
• Experience in leading a small (6 to sales field-based sales team to achieve regional business goals.
• A proven history of exceeding annual sales quotas as both an individual contributor and in sales management.
• Key contacts within the training industry would be ideal
• Proven ability to develop regional account plans and strategies for new customer acquisition and existing customer growth..
• Proven ability to recruit, motivate a sales team to aggressively grow a regional sales territory to ensure maximum revenue growth.
• The ability to manage major account sales cycles with global organizations.  Must understand sales cycles and know how to leverage each stage in the cycle.

Why Consider this Opportunity?

• The E-learning industry is healthy and growing.  The company is the market leader in e-learning content with 3000 customers and 10+ million end-users.  They are known for unparalleled service and have been #1 in customer loyalty three years in a row.
• The company reinvests in the future and has spent 40M+ in research and development for the past five years.
• The E-learning industry is largely recession proof.  All companies need training, be it technical, compliance, or other in order to compete.
• High employee morale and very little turnover.
• Casual and team oriented work environment.

Compensation:

$120K base with on target earnings at quota of $280K.

To apply, email resume to:

Jackie Benton

jbenton@duffygroup.com

Building strategic business plans for the interior design industry

My sales person called me back today to “follow up”(?)   In my sales workshop (you can find out more at www.dialogue-consulting.com get a free report on steps to client security and find out about my workshops).  I teach sales people in my four steps to client security that following up with a client should aways have purpose!  Otherwise it will start to sound too pat and the person will become annoyed.

I hate to put this sales person down again, but this call had NO purpose.  He asked if I had any more questions.  Well if you read my last post, you will see that he didn’t even answer any of my original questions, why would I have any other ones?  Do you think for one minute that I LIKE being frustrated?

So I am now guessing that this company (and it is a MAJOR online company) either has NO sales training, the training is extremely bad OR this person is just not worthy!

This is an example of why I know!

I was talking to an outside sales person today from Florida.  I asked him how business was and you know what he told me?  Not at all what I was expecting; the usual, “oh well, you know, the economy”. Or “Florida was hit so hard with the housing market (which we have all heard)”.  Not even, ”well it is such tough times, as you know, but I am doing the best I can”.

 NO

He said he is having the best year ever in five years he has been in Florida!!

WOW…I asked him to repeat that so I could check if I heard him right and, I did!  So then I asked him how he was doing that and he said he was calling on interior designers (he sells interior products) and because so few other reps are out pounding the pavement, he is getting BIG time business! 

What a concept, huh?  I have been saying through this entire downturn that there IS business out there and it is our job as interior designers or sales people or showrooms to find the business and serve these clients well.

Don’t try to sell something else or try to find another market, just find people who buy what you already sell.  That’s what makes these times a little bit tougher.  It’s not that there is NO business, it just takes a little more time to do something out of the ordinary or to change what we have done in the past.  We need to SELL whether it is ourselves, our services or products.

This salesperson also said that the design firms are laying off some people, but the people who are left are extremely busy.  All I could think is that I wish I could clone this guy and put him in every city for my clients.

There are tons of ways to find new business if you just take the time to really look.  I am sure of it!  We can all find new business in good and bad times.  We should never, ever just rely on the momentum of good economies or great product. 

The one thing I can say is that bad economies shine the light on bad selling skills.  However we all need to sharpen our skills with classes or reading or workshops.  Now is the time to invest our resources to build stronger businesses.  Then when the times are good, we need to be uber organized so that we can continue to market or sell.  That’s the way to have that strong foundation of business and weather any financial times.

Company Description:

Nachurs Alpine Solutions manufactures high quality liquid fertilizer and has been serving the retail agricultural industry for 60 years.  Nachurs was established in 1946 in Marion, Ohio by an Ohio State University chemist, Ben Peterson, who pioneered the concept of putting starter fertilizer on the seed.  Nachurs is headquartered in Ohio with three additional manufacturing facilities:

• Corydon, Indiana
• Red Oak, Iowa
• New Hamburg, Ontario Canada

Visit the Nachurs website, www.nachurs.com , for detailed product information.

Position Description:

The Sales Manager in will be charged with developing new business in Central/Western ND and Eastern MT.  The Sales Manager will sell into agricultural retailers, co-ops, and independents.  This is a new territory for Nachurs and the person in this role will be charged with creating a customer base.  Successful territories have started by selling at the farm level and increasing demand in an area and then moving on to the retailers in the area.  The key to success will be this person’s ability to persuade potential customers of the benefits of the company’s products over commodity fertilizers and other competitor’s products.  The Sales Manager will work from a virtual home office and will report to the VP of Sales and Marketing for the Midwest. All expenses are paid.  A computer and a car allowance are provided.  Travel throughout the territory will be as needed.

The requirements:

• Five years of sales experience selling agricultural related products into agricultural retailers, independents is preferred.
• A self-motivated individual is a must.
• Computer literacy required (Microsoft Office).
• Bachelor’s degree is preferred.
• Ability to travel as needed within the territory.

Why consider this position?

• The company is stable and reputable and offers unlimited growth potential.  As you build this territory you will see compensation growth.
• The company is the dominant player in the specialty market.
• The ability to grow sales is out there; it needs to be captured.

Compensation:

• Company is offering a competitive base salary + commissions.  Stellar performers who can grow sales may earn up to $85-90K.
• Strong benefits package, which includes medical, dental, and 401K

To apply, send Word version of resume to:

Jackie Benton

Recruiting Consultant

jbenton@duffygroup.com

Building strategic, long term growth for the interior design industry

I have been hearing for months that business is awful.  There are no clients, there is no money, I am up against 4 other designers when I go for a small job.  I even read an article in the New York Times last month about things you can do for more business.  With due respect, I would not call it more business, I would call it more money/short term.  I have felt a sense of desperation from many which saddens me.  I know, for sure, there is a better way!

So I have decided to make available the same exact techniques I used to build interior design product companies, showrooms and designers into more profitable businesses in ANY economy!

“We engaged Deborah to assist during a period of transition and growth in our firm.

Deborah has a wealth of experience within the interior design industry and as a result is in a position to offer guidance and “big picture” counsel to firms that engage her services.

 I short, Deborah has an in depth knowledge of facets of the interior design and will prove to be an asset to the firms that engage her services”.

Suzanne Lovell (Principal Suzanne Lovell, Inc.)

To launch this effort, I am going to offer a FREE call which will explain 5 easy ways to bring in more business from a true insider!

You will see in another post I am writing, (it will be posted in a couple of days) my conversation with a representative in Florida who is having the best year since he has been in Florida (5 years).  He is working under the same exact conditions as all of us! 

Over the past 8 months I have interviewed both busy design firms and ones who have no business at all.  So what are the “secrets” of the busy design firms.  They follow the same sound practices that I have been using for my clients!

My free teleseminar is SEPTEMBER 15th from 7:00 to 8:30 EST.  Sign up and even if you miss it, I will be making available a FREE MP3 download.  You don’t pay one cent, what do you have to lose?

So just log on to http://tinyurl.com/m8fa7t

I am very excited to offer this workshop and hope many will attend.  I promise it will be filled with great content that will get you on a path of more business!

Business strategies for the Interior Design Business

I just got off the phone with a “salesperson” who was trying to “sell” me an online application that I am actually interested in.  He had to remind me about what his application was to refresh my memory. 

So when I answered the phone I heard a pretty drone voice  as he explained who he was and I realized that it might be something I was intersted in.  I asked him one simple question.  “What set him apart from his competitor who I named and said I was familiar with”?

He started to tell me the features of HIS product.  After a sentence or two, I said that his competitor had the same exact features.  He then  hesitated and said, “oh well, we also provide…..” Again, I said his comptetitor had the same features.

So then I just came out and asked the price.  Since both seem to have the exact same features according to what he had told me, it’s just going to boil down to price.  He then (in his drone voice) told me that I could probably just do the basic plan in which I would get…….  And how much was that?  MORE EXPENSIVE THAN HIS COMPETITOR!  Without any prizes, bells and whistles or extras that, again, would set him apart from his competitor. 

How many chances can I give one bloke?

So what are the business marketing strategies we have learned from this when you are presenting to a client?

(1) KNOW YOUR COMPETITORS!  Know all about them and how to differentiate your own services or products!  Think about if this person knew who the other company was.  How different could his presentation to me be!

(2) ASK QUESTIONS! Ask questions of your clients.  They will give you so much information you can then use to mold your presentation.  The more “pain” you can take away from your clients, the more you set yourself apart from your competitors and the more you SELL.  You can directly address most of your clients concerns. If before this sales person opened his features/benefits book, think about how much better his presentation would be when he answered my concerns that were brought up by questioning me.  For instance,  What is your feild? What is your timeframe of wanting to use this product?  EVEN what is your budget? 

(3) LISTEN TO YOUR CLIENT! Don’t just open that book of sales techniques 101 and go straight into the features.  That is not what I asked.  I asked what set him apart from his competitor.  All this person needed to do was answer my question.

(4)  DO NOT LET IT GET DOWN TO PRICE ONLY! Why?  Less will almost always win!  Don’t devalue your services or product.  Learn how to sell them instead.  In this case, the price won out!  This person will never see this sale unless he brings his price down and that means less money for the company and him!  And less trust on MY part! 

(5)  DON’T LET THE CLIENT CONTROL THE PRESENTATION!  You will rarely end up on the side of the sale if you let your client control the presentation.  You need to position yourself and/or your product as the expert.  Once the client takes control (or should I say YOU lose control) they can lead you down paths you really don’t want to go (like comparing price before you have had a chance to pull away from the competitors!)  Self-explainatory

(6)  NEVER stop being a student!  If you are not having as much success as you want, ( I know I never do) maybe you should look inward instead of blaming it on every outside influcence like the economy.  What could YOU do better.  How you can improve your selling skills.  If he would have read a book, taken a course, studies sales techniques, how much more competent would he have been?

(7) MOST IMPORTANTLY BE PREPARED!  This is not just a boyscout saying, although it’s a great one.  You must prepare by doing all of the above and then just practice!  Again, self-explainatory!

As a business consultant who has trained many salespeople, I know this sales person will not even get close to seeing this post. He does not seem to be the type of person who wants to search out things that might make him a better and more successful sales person.  Even if he does , he will probably not recognize himself, as rarely do people such as he want to take a deep look at why they are not getting the sales!  These are what I commonly call order takers.  If someone he calls has not done their homework or is just “ripe” for the picking, he gets the sale.  If not…….

Don’t leave your destiny up to anyone but yourself.  Know that in interior design, product sales, showroom sales or even customer service, you can control your destiny.  And, I have to say, it’s really easier than you may think.  In fact, I think it’s a lot easier.  You work SMARTER not HARDER and stop riding your bike in sand!

I happen to offer a great sales course for interior designers and sales people.  Just go to www.dialogue-consulting.com and look at the new sales workshop!  But that’s only one way to get ahead of the crowd!  You can chose that or a thousand other options to work on your skills.

Paralegals: FLSA Exemption Applicability

On August 23, 2004, the “white – collar” exemption guidelines under the Fair Labor Standards Act (“FLSA”) were amended for the first time in almost 30 years. Under the FLSA, all workers are entitled to overtime pay. Only employees determined to be exempt under the ‘white-collar’ guidelines may be excluded from non-exempt, hourly compensation procedures. Specifically, the regulations at 29 C.F.R. Part 541 ( “Part 541”) provide exemption from overtime compensation for specific types of executive, professional, or administrative workers ( “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees”, 2004).

The revisions made to the FLSA language were highly anticipated for some time. The job duty requirements needed to satisfy the “exempt employee” definition had not been altered since 1949. The minimum salary required to meet exemption standards had not been updated since 1975. Until the regulations were revised, the theoretical possibility existed that an employee earning only $8,060 per year could have been classified as an executive, and denied overtime compensation (“Defining and Delimiting….”, 2004).

According to several resources utilized, many employers “large and small, public and private – don’t understand how to interpret the exemption regulations under the Fair Labor Standards Act” (Ritter, 2002). One of the benefits provided by the FLSA revision was the amount of open conversation, debate, and contention that occurred as a result of the proposed rulemaking, which spurned immense interest in FLSA compliance (Priest, Coleman; 2004). Many employers, industry groups, and lobbyists answered the proposed regulations with individual legal opinions, either concurring with or arguing against the new Part 541 language. Since the August 2004 enactment, quite a few employment law consultants have held symposiums or seminars, answering questions and concerns about the changes made.

For the purpose of this research, the newfound ability to locate insightful, modern analyses of the FLSA exemption standard has been incredibly useful. “The revisions which became effective on August 23, 2004, sparked a flurry of action in the legal community as employment lawyers across the country scrambled to digest the changes and advise their clients” (Priest, Coleman; 2004). Had the FLSA revisions not occurred, it is questionable whether the dearth of current, critical resources would have been available.

This research provided several conclusions regarding XXXXXX Corporation’s Legal Compliance Department paralegals and their exemption status under the FLSA.  First, these particular paralegal employees are quasi-specialists, and cannot be construed as typical paralegals working in other legal venues. Second, these employees are normally engaged in duties that easily fall under the FLSA’s “white-collar” exemption, specifically under the administrative duties category. Lastly, various types of “Paralegal Specialists” are becoming more commonplace, as employers realize the cost effective benefits of paralegal utilization and engage these employees in tasks that do not require an attorney’s efforts.

“Legal compliance” has increasingly assumed a greater role in traditional business stratagem. In light of some of the more rigorous compliance standards that have been enacted in the past decade, such as the Sarbanes-Oxley Act or the Graham-Bleach-Bliley Act, corporations in the 21^st century clearly understand the significance of compliance.

XXXXX Corporation’s Legal Compliance Department has become responsible for a number of specific areas, including forms compliance, DOI regulation, legislative and litigation tracking, and business practice advisement.  Insurance is an exceedingly regulated industry, and the need for an internal department to act as a guide in these areas is crucial.

The Legal Compliance Department’s paralegals are consistently engaged in activities that are not typically part of paralegal practice. Paralegals employed in most corporate legal departments are engaged in the tasks involved with litigation. The Legal Compliance Department has instead served as a type of preventative legal function for XXXXX Corporation. By consistently identifying potential risk, actively learning of new risks for litigation as identified by XXXXX Corporation’s competitors, and by providing counsel for management, the Legal Compliance Department has been at the forefront of reducing the risk of future litigation or regulatory intervention. In this way, the department’s work is much less procedural and finite than the legal work typically part of litigation. Because of this difference, paralegals in the Legal Compliance Department are continuously engaged in work that is more abstract, and as a result, cannot be gauged by a timeline. An example of such work is universal research projects, typically encompassing months of effort. Tasks involved with a typical universal research project include determining the legal viability of a specific business practice, recommending changes to a supervising attorney, and after receiving a supervising attorney’s approval, acting as a contact during the implementation process.

The abstract work performed by the Legal Compliance Department’s paralegals conform to the Department of Wage and Hour’s interpretation of an exempt employee’s work. According to the historical summary of the FLSA, in the revised Part 541, “the type of work they [exempt employees] performed was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time-and-a-half overtime premium”( Department of Labor, 2004 ). 

XXXXX Corporation’s paralegal employees serving within this Legal Compliance Department have fulfilled various responsibilities within this preventative compliance process. Examples include the following:

•    Legal Environment Tracking: Researching current activities and events occurring in the areas of litigation, legislation, and business practices. Identifying appropriate members of the organization to communicate these current trends with, and relaying the continuing stream of information for necessary action. This type of competitive research has prompted increased awareness of current trends on the industry horizon. As a result of such information, necessary changes have been implemented in various company functions.
• Legal Research: After learning of potential risks, research is conducted internally, often across multiple departments, in order to develop a sound viewpoint regarding XXXX Corporation’s business practices. Case law, statutory law, and competitor’s business practices are identified in order to provide conclusive resolution to the long-standing question: “What is XXXX Corporation’s exposure?” After the research conclusions are summarized, they are reviewed and approved by supervisory attorneys, prior to changes being implemented.
• Licensing:  Research, preparation, and submission of both new XXXXX Corporation licenses, or updated/renewal licenses. Staying abreast of changes within the business, necessary revisions are identified, and specific procedures are followed for implementation. Often involved in researching XXXXX Corporation licenses for business purposes, such as identifying the appropriate licensed producer for a hybrid business operation, or researching/job costing of licensing vendors in order to obtain new licenses in a more time-efficient manner.

Discretion and Independent Judgement

 In order to qualify for the Part 541 exemption, employees must be further categorized as Professional, Administrative, or Executive employees. In the past, the Department of Labor’s Wage and Hour Division has issued several statement letters regarding paralegal workers. The greatest argument has always been for paralegal exemption under the professional category. Many paralegals feel that their specialized education, training, and job skills provide them with the necessary ammunition to claim exemption as a learned professional. Unfortunately, due to the lack of standardization within the paralegal profession, this attempt to brushstroke paralegal employees into a legal, professional category has not been embraced.

XXXXX Corporation’s Legal Compliance Department Paralegals fall under the administrative category of Part 541. In the past, the Wage & Hour Division has also struck down this possibility for paralegals, by inciting a theorem based on a paralegal’s job duties and the unauthorized practice of law. Specifically, in the Opinion Letter issued by the Division in 1977, it was agreed that a paralegal worker could not receive exemption, except under the administrative employee capacity. Then, in order to strike down this possibility, the Division issued the following declination:

         “It is our further position that ‘legal assistants’ and ‘paralegals’ generally are not involved in the performance of duties requiring the exercise of discretion and independent judgment of the type required by section 541.2; they are, instead, involved in the use of skills rather than discretion and independent judgment. In our view, such employees generally are found to be highly trained and highly skilled specialists who, as such, would not qualify for the exemption as defined….in Regulations, Part 541.5” (Rodriguez, 2002).

 Unfortunately, each of the Department of Labor’s opinion letters regarding paralegal exemption only considered paralegals working in positions specific to litigation. While considering paralegal employees under the administrative, exempt employee category, the Wage & Hour Division found that “traditional legal assistant duties such as preparing oral presentations or meeting and interviewing clients do not involve the exercise of discretion and independent judgment”(Rodriguez, 2002). In the Department of Labor’s “most recent opinion letters, legal assistant duties such as drafting pleadings, discovery requests and letters to clients, performing legal research, cite-checking briefs, preparing trial material and dealing with clients and witnesses, represent duties that involve the application of skills and knowledge rather than discretion and independent judgment” (Priest, Coleman; 2004).

The DOL’s paralegal decision is not specific to XXXXX Corporation’s Legal Compliance Department Paralegals. Only one of the job duties above – “performing legal research” – could be attributed to these specific XXXXX Corporation employees. The rest of the tasks are only attributable to paralegal employees either working in the Claims Department or in Litigation.  

The Department of Labor’s interpretation of the FLSA provides that a number of factors must be considered when analyzing an employee’s use of discretion and independent judgment. No criteria have been set for how many of the factors must be utilized to meet exempt status. The factors considered by the DOL include:

• “Whether the employee has authority to commit the employer in matters that have significant financial impact;
• Whether the employee has authority to waive or deviate from established policies and procedures without prior approval;
• Whether the employee performs work that affect business operations to a substantial degree” (Snider, 2004).
• “Whether the employee has authority to formulate, affect, interpret or implement management policies or operating practices;
• Whether the employee carries out major assignments in conducting the operations of business;
• Whether the employee has authority to negotiate/bind the company on significant matters;
• Whether the employee provides consultation or expert advice to management;
• Whether the employee represents the company in handling/ resolving grievances or in arbitrations”(Borgen, 2004).

XXXXX Corporation’s paralegal employees in the Legal Compliance Department arguably do not participate in a number of the above scenarios. However, tasks performed by Legal Compliance paralegals do fall into several of the categories above – “whether the employee performs work that affects business operations to a substantial degree”(Snider, 2004); “whether the employee has authority to formulate, affect, interpret or implement management policies or operating practices”; “whether the employee carries out major assignments in conducting the operations of business”; and “whether the employee provides consultation or expert advice to management”(Borgen, 2004). Examples of tasks that fell into one of the above referenced categories include:

•   Fair Credit Reporting Act (FCRA) case law research: Research of recent case law  against XXXXX Corporation competitor. Located specific market/business practice issues called into question by the court. Identified similar issues with XXXX Corporation practices/forms. Submitted findings/recommendations to supervising attorney, who then led effort to implement internal changes based on research conducted.

•   Spanish Forms Translation:  Research of applicable state statutes and case law,  supporting supposition that legal conflicts may exist with consumer forms translation. Research of XXXXX Corporation’s competitor experiences with translating consumer forms. Identified necessary components of a reputable translation service. Submitted findings/recommendations to supervising attorney. Upon review, supervising attorney counseled the organized business team on conclusions of law.

• XXXXX Corporation competitor’s financial reports:  Upon filing of SEC financial statements, either year-end reports or quarterly statements, review is made of  competitors’ documents. Research, composed of competitor’s reported legal issues, is compiled and compared to previous compilations. New issues are identified, and the natural progression of competitor’s cases and regulatory proceedings are also noted. Findings are submitted to supervising attorneys, noting new elements of risk in the litigation environment. Potential future issues requiring compliance scrutiny are also identified.

Reich v. Page & Addison LLC

The Department of Labor suffered a huge blow to their opinion on administratively exempt paralegals in 1994. In Reich v. Page & Addison, the Department of Labor used their limited resources to prosecute in their attempt to allege that Page & Addison, LLC, had improperly designated their paralegal employees exempt. “The Department of Labor slapped a federal lawsuit on the firm – an action only infrequently taken due to financial constraints. But it’s safe to say, when the Department of Labor does take the time and expense of going to court, one of it’s primary intentions is to broadcast a message to the rest of the industry in question”(Ritter, 2002).  A Dallas jury in the United States District Court in the Northern District of Texas agreed with the law firm, and found the paralegals in question to be exempt. All of the Page & Addison, LLP paralegals were found to exercise independent judgment and discretion when they performed their duties and fulfilled their responsibilities, even though a supervisory attorney must approve or reject the paralegals’ work. “A key to the successful defense was the virtually unanimous support the firm received from its legal assistants who resented the department’s attempts to characterize them as (in their own words) ‘glorified secretaries’ (Priest, Coleman; 2004). Another article summarizing the activity behind Reich v. Page & Addison described the Deparment of Labor’s loss as follows:

“Smarting from that decision, the government appealed to the 5^th U.S. District Court of Appeals; then, six months later, the Department of Labor did something that remains a mystery to this day, it dropped the appeal. Why? Did the Department of Labor’s move signal an abandonment of its long-standing position that the majority of legal assistants must be paid overtime? No one at the Department of Labor was willing to go on the record about the dropped appeal, except to say that nothing in the agency’s decision should suggest a change of heart. And, in fact, the labor department continues to pump out administrative rulings, some stating paralegals generally don’t qualify for any of FLSA’s exemptions”(Ritter, 2002).

Since the Page & Addison decision, each opinion issued by the DOL regarding the issue has only focused on paralegals’ inability to claim status under the professional exemption. In regards to the administrative exemption, the DOL will only state that paralegals “are generally” not exempt. 

Attorney Supervision

The Department of Labor had previously asserted that American Bar Association standards regarding the unauthorized practice of law restricted a paralegal’s ability to claim exemption under Part 541. In their belief, a paralegal, by definition an employee under the supervision of an attorney, could not exercise the amount of independent judgment and discretion required of an administratively exempt employee.

           “Delegating legal tasks to a lay person is proper ‘only if  the lawyer maintains a direct relationship with the client, supervises the delegated work and has complete professional responsibility for the work produced. The implication of such strictures is that [a legal assistant] would probably not have the amount of authority to exercise independent judgments with regard to legal matters necessary to bring them within the administrative exemption’”(Rodriguez, 2002).

This seems to be the strongest argument against paralegal exemption. Following this theory, the amount of supervision required by an attorney negates any possibility that the decisions made by paralegals require enough discretion and independent judgment. Unfortunately, this argument fails on several grounds. 

First, the amended FLSA “white-collar” exemption standards now allow an administratively exempt employee to be supervised. “The regulations state that exercise of judgment/discretion is not negated by the fact that the employee’s decision making may not be final or unlimited. Some review by higher authority may be tolerated, even if decisions are ‘upon occasion’ revised or reversed after review”(Borgen, 2004).

As the FLSA seems to allow administratively exempt employees to make decisions under the general guidance of a superior, the real question lies in the degree of supervision that an attorney is required to give while overseeing a paralegal’s work product. A recent Oklahoma Bar Journal article supports the theory that an attorney can exercise enough diligence in their supervision of non-attorneys, that those non-attorneys may still exercise enough discretion and independent judgment to claim exemption status:

    “ The revised administrative exemption also relaxes the earlier requirement that employee decisions be free from  immediate supervision. It indicates that employees can  exercise discretion and independent judgment even when their decisions are reviewed at a higher level. Accordingly, legal assistants could exercise the requisite discretion and independent judgment even where their decisions are reviewed by supervising lawyers, as they must be under the Rules of Professional Conduct. Legal assistants were found to utilize discretion and independent judgment in Reich. There, the jury found that legal assistants exercised the requisite discretion and judgment to qualify as exempt”(Priest, Coleman; 2004).  

In fact, the general supervision required of an attorney, by law, does not seem to override the assertions made by many employers, that their paralegal employees exercise enough discretion and independent judgment to render them exempt. According to NFPA’s (National Federation of Paralegal Associations) 1999 Report, the industry is nearly equally divided on the exempt vs. non-exempt question. In the corporate legal environment, the proportion of exempt v. non-exempt paralegal employees is very different. “Almost three-quarters (73.3%) of for-profit corporations consider paralegals exempt; a quarter (25.2%) pay them overtime, and 1.5% responded “other” or didn’t reply” (Martin-Bowen, n.d.).

The American Bar Association has issued statements supporting the preposition that a paralegal’s work is substantive in nature. The following definition of paralegals and legal assistants was issued within the ABA’s Standing Committee on Legal Assistants’ position paper on the “Question of Legal Assistant Licensure or Certification”:

           “[A] person, qualified through education, training, or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically-delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task”(Meckler, B.R., Leigh, M.; 2004).

This ABA opinion, reflecting on the substantive nature of paralegal work, is also upheld in case law.  In Missouri v. Jenkins (491 U.S. 274 (1989))¹, the U.S. Supreme Court upheld an award of attorney fees that included a stipend for paralegal time at “market rate”. Ever since this formulative case decision, the law has been consistently questioned about this decision. Specific to this research is the question, “What types of tasks can a paralegal be compensated for, through court-awarded attorney’s fees?”

              “Parties have debated whether the time reported by paralegals is non-reimbursable clerical time. In determining whether paralegal time reimbursable, the court in In re CF&I Fabricators of Utah, Inc.², referred to the definitions of a paralegal provided by the American Bar Association Standing Committee on Legal Assistants and the National Association of Legal Assistants, which provided that paralegal work is substantive legal work that is performed under the supervision of an attorney. In In re Busy Beaver Bldg. Ctrs., Inc.³, the court held that paralegals were to be compensated for tasks ‘involving the exercise, or potential exercise, of some paraprofessional judgment.’ However, it considered services not requiring the exercise of professional legal judgment to be non-reimbursable as clerical expenses in overhead”(Meckler, B.R., Leigh, M., 2004; see also Rodriguez, 2002).

¹ Missouri v. Jenkins by Agyei, 491 U.S. 274, 109 S.Ct. 2463.

   Jun.19, 1989 (Approx. 13 pages).

² In re CF & I Fabricators of Utah, Inc., 131 B.R. 474
   Sep 18, 1991 (Approx. 27 pages)

³ In re Busy Beaver Bldg. Centers, Inc. , 19 F.3d 833
  Mar 11, 1994 (Approx. 29 pages)

Clearly both the court and the ABA seem to rigorously defend paralegal duties in the legal environment. The ABA defines paralegal work as tasks of substantive legal involvement that would normally be accomplished by an attorney.

Case law supports the award of paralegal fees as part of attorneys’ fees, and states that only tasks requiring “paraprofessional judgment” can be reimbursed. Clerical tasks cannot be reimbursed through such award.

In the National Association of Legal Assistants’ (NALA) Corporate Human Resources Guide To The Legal Assistant/Paralegal Profession”, an extremely concise depiction of corporate paralegals is given. This description not only explains the ABA opinion of paralegals, but also expresses the intentions of illustrated case law. For the audience of Human Resources professionals, NALA also offers explanations about the typical utilization of paralegals in a corporate environment, and the cost-effectiveness of doing so. The most specific language used in the NALA guide is the depiction of attorney  supervision of paralegal employees. Please see the excerpt from NALA’s Corporate Human Resources Guide below:

                “Over the past 25 years other associations, for instance, the American Bar Association, have developed their own definitions of “legal assistant/paralegal” and much has been written as to what duties are appropriately delegated to legal assistants. All agree that legal assistants/paralegals perform work which is of a substantive nature, requiring education, knowledge and expertise, distinguishing it from that which is clerical or rote. Case law relating to legal fees has been consistent in requiring that the task performed by the legal assistant be that which an attorney would do if the legal assistant had not been available—not work traditionally done by secretaries or clerks.

               Legal Assistants do work which requires substantive legal knowledge, creativity in problem solving and independent judgment, but always under the supervision of a lawyer. The nature and amount  of supervision required lies within the lawyer’s discretion. Legal assistants/paralegals cannot ethically set fees, accept or reject clients, represent clients in court, or give legal advice. Yet, legal assistants may, and do, exercise independent judgment within established parameters…

               An in-house legal assistant acquires knowledge that is invaluable to both internal attorneys and outside counsel, which, in turn, allows matters to be handled efficiently and cost effectively. Corporate legal assistants become extremely familiar with the organization of the company, its goals, priorities, and products, and can accumulate, analyze and summarize data and facts from an insider’s perspective. From such insight legal assistants can quickly determine the appropriate persons to contact to obtain specific information, saving time and money when working with outside counsel in preparing and responding to discovery requests in litigation.

             Experienced legal assistants with in-house knowledge work not only in the legal department but are found in a variety of positions throughout a corporation: contract administrator, corporate procurement, patents or corporate secretary to name a few”(National Association of Legal Assistants, 1999).

Conclusion

Paralegal employees are being consistently utilized for various capacities, as employers realize the benefit of a legal background. These legal workers are no longer just attorney support – they are filling positions as management or as consultants in law firms, corporations and government agencies.

Several resources consulted for this research all agree that “paralegals work quite autonomously, exercising a good deal of independent judgment in performing their work. (Cannon, 2002). Although unauthorized practice of law statutes specifically prohibit nonlawyers from appearing in court on behalf of a client, establishing the attorney-client relationship, or from giving legal advice, many tasks can be legally fulfilled by a paralegal employee (Cannon, 2002).

The amount of paralegal supervision required of an attorney depends on the nature of the work assigned, along with the paralegal’s qualifications and skill set. Some paralegals, depending on the field they are involved, are unable to claim exemption under the FLSA due to the ministerial, procedural nature of their work. This is especially true of paralegals involved in litigation. However, paralegals involved in other legal specialties can claim exemption, if their tasks require independent judgment and discretion, and the employee does not require undue supervision by an attorney (Segal, 2004).

                                                           References

Attorney Job Opportunities.(2005). “20JG – Compliance Manager”. From Legal Liaisons, Ltd. Retrieved March 29, 2005 from http://legalliaisons.com/attyjobs.htm.

Barber, J.(2004). “Texas Paralegals” and the New Overtime Regulations. Retrieved March 27, 2005 from http://www.lad.org/TPJ/36/article_6_summer2004.asp.

Borgen, D. (2004, Aug.). The New White Collar Exemption Regulations. Prepared for the American Bar Association’s Annual Convention. Retrieved March 27, 2005 from http://www.bna.com/bnabooks/ababna/annual/2004/borgen.doc/.

California Alliance of Paralegal Associations.(n.d.) FREQUENTLY ASKED QUESTIONS BY ATTORNEYS ABOUT PARALEGALS. Retrieved March 28, 2005 fromhttp://www.caparalegal.org/ATTYS.html#Could%20attorneys%20use%20a%20law%20student%20or%20a%20young%20lawyer%20to%20do%20the%20work%20attorneys%20would%20delegate%20to%20a%20paralegal?.

Campbell, Rachel.(2004). Roads Less Traveled. Retrieved March 27, 2005 from http://www.legalassistanttoday.com/issue_archive/feature_ma04.htm.

Cannon, T.A. (2002). The Ethics of Working with Legal Assistants. GPSolo Magazine (19)1. Retrieved April 25, 2005 from http://www.abanet.org/genpractice/magazine/janfeb2002/cannon.html.

Department of Justice.(2004, February 23). Paralegal Specialist Position. Retrieved April 10, 2005 from http://academic.bowdoin.edu/environmental_studies/resources/dissemination/feb23_04.pdf.

Department of Labor (D.O.L.) Wage & Hour Division.(2004, April 23). Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. 69 FR 22122.

Johnson, R.E. (2003). Don’t Eliminate Overtime Pay. Legal Assistant Today. Retrieved

         http://www.legalassistanttoday.com/issue_archive/my_opinion_so03.htm.

Kilpatrick Stockton LLP. (2005, March 10). United States: U.S. Department of Labor Issues A Series of Wage-And-Hour Opinion Letters. Retrieved March 25, 2005 from http://www.kilpatrickstockton.com/publications/downloads/LA02.05.pdf.

Martin-Bowen, L.(n.d.) To Pay or Not to Pay: That’s a Good Question. National Federation of Paralegal Associations: Professional Development article. Retrieved March 27, 2005 from http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=387.                                                                                                                                          

Hunt, Stacey.(2000). The Ties That Bind. Legal Assistant Today. Retrieved April 10,  

         2005 from http://www.legalassistanttoday.com/issue_archive/feature_mj00.htm.

Legal Liaisons.(n.d.) Attorney Job Opportunities. Retrieved April 10, 2004 from http://legalliaisons.com/attyjobs.htm. 

Meckler, B.R., Leigh, M.(2004, Nov.4). Reigning in “Runaway” Defense Costs in Professional Liability Claims. Retrieved April 10, 2004 from http://www.plusweb.org/Downloads/Events/runaway%20claims%20paper%20-%20%20Leigh&Meckler.doc.

 National Association of Legal Assistants.(1999, July). The Corporate Human Resources Guide To The Legal Assistant/Paralegal Profession. Retrieved April 10, 2005 from http://www.nala.org/Hrbrochure.htm.

Priest, J.; Coleman, S.(2004). Watch Your Neck on ‘White-Collar’ Exemption for Legal Assistants. Oklahoma Bar Journal Articles. Retrieved April 10, 2004 from http://www.okbar.org/obj/articles_04/100204coleman.htm.

The Princeton Review.(n.d.) Career Profiles: Career: Paralegal. Retrieved April 17, 2005 from http://www.princetonreview.com/cte/profiles/dayInLife.asp?careerID=105.  

Ridgeway, Dorene. (n.d.) The Effect of the D.O.L. v. Page & Addison Decision on Paralegals and Their Employers. From the ‘Lectric Law Library’s stacks. Retrieved March 28, 2005 from http://www.lectlaw.com/files/pap04.htm.

Ritter, N. (2002). Bedeviled. Legal Assistant Today. Retrieved March 26, 2005 from http://www.legalassistanttoday.com/profession/bedeviled.htm. 

Rodriguez, Xavier. (2002). Paralegal Overtime. Retrieved March 27, 2005 from http://www.abanet.org/genpractice/magazine/janfeb2002/rodriguez.html.

Segal, J.A.(2004, Dec). White-collar wrinkles: don’t let the new FLSA regulations leave you steamed. Retrieved March 28, 2005 from http://www.findarticles.com/p/articles/mi_m3495/is_12_49/ai_n8585658/print.

Sidley, Austin, Brown & Wood LLP. (2005, February 15). Wage & Hour Division Issues Opinion Letters Clarifying Salary Basis Test, Bonus Rules, and Exemptions. Retrieved March 27, 2005 from http://www.sidley.com/db30/cgi-bin/pubs/Employment%20&%20Labor%20Law%20021505.pdf.

Shawnee State University: Business Administration.(n.d.). Bachelor of Science in Business Administration with a Concentration in Legal Assisting. Retrieved April 10, 2005 from http://www.shawnee.edu/acad/ba/legal.html.

Smith, C.J., Koerselman, V., Elliott, P.G. (2002). Legal Assistants: How to Recruit, Train, Supervise, and Retain the Best. GPSolo Magazine (19)1. Retrieved April 10, 2005 from http://www.abanet.org/genpractice/magazine/janfeb2002/smith.html.

Snider, C. (2005, Feb). New Fair Labor Standards Act: Paralegal Life Is The Same. Newsletter of the American Institute for Paralegal Studies, Inc. Retrieved March 28, 2005 from http://aips.com/AIPS.Publications/00011583-80000001/00E7FAEA-005B8F3D.-1/Verdict0205.pdf.

Turner, J.C.(n.d.) Freedom of Legal Information: The Need to Increase Access to the Courts For America’s Impoverished and Working Communities. Retrieved March 28, 2005 from http://www.turnerhome.org/jct/Clips/mie_summer_1999.pdf.

 U.S. Securities & Exchange Commission.(2005). Vacancy Announcement. Retrieved April 21, 2005 from http://www.usajobs.org/jobs/26829.htm. 

Vorys, Sater, Seymour & Pease LLP. (n.d.) The Paralegal Program at Vorys, Sater, Seymour and Pease LLP. Retrieved March 28, 2005 from http://www.vssp.com/CM/Career/Career1107.asp.

 <a rel=”license” href=”http://creativecommons.org/licenses/by-nd/3.0/us/”><img alt=”Creative Commons License” style=”border-width:0″ src=”http://creativecommons.org/images/public/somerights20.png” /></a><br />This <span xmlns:dc=”http://purl.org/dc/elements/1.1/” href=”http://purl.org/dc/dcmitype/Text” rel=”dc:type”>work</span> by <span xmlns:cc=”http://creativecommons.org/ns#” property=”cc:attributionName”>Lana Owens</span> is licensed under a <a rel=”license” href=”http://creativecommons.org/licenses/by-nd/3.0/us/”>Creative Commons Attribution-No Derivative Works 3.0 United States License</a>.

Building the Business of Interior Design

I just read another post on the Huffington Blog that said “The economy is problematic NOT the problem.  I so agree with this!

In the past few months I have spoken with many design firms, showrooms and design centers. There are design firms and showrooms that are busy.   Others are laying off and reducing expenditures. That is the most common way companies deal with downturns. I am here to say -  there is a better way.

I looked at these companies to analyze what the successful ones were doing differently than ones suffering. I came to the conclusion that   was right in line with my thinking.  It really is less about economic times and more about thinking and working in innovative ways.   Just thinking and DOING things differently. 

I have always believed that learning new ways of doing business, keeping up with technology and trends are ways that lead to that strong business foundation.  This is what will keep companies robust in both good and challenging economic times. These economic downturns will come back; it is a basic financial fact. Therefore, we need to be poised for all types of economies and now is a perfect time to learn new techniques and ways to build a stronger foundation.

By introducing my clients to new and innovative ways to think and implement new structure for a solid foundation, they have been able to really capture what is needed in the industry and claimed their spot, even in the most trying financial times.

That’s why I am in the midst of planning my very first telesummit for the design industry. It will be four days of solid, “can do” content and fresh ideas to give you great ways to build your businesses. I will be coming out with all the information in the next week or so, but I absolutely promise it will be fantastic. I am lining up the best and most innovative experts in both the design industry as well as social media, branding and marketing.

My goal is to help the business I care so much about and to which I have dedicated my whole career. So I will make it affordable (how does only $97.00 for all four days sound). And you will be able to download all the presentations and listen to them in your own time and as many times as you want. (and you will definitely want to listen often!)

……so stay tuned!

Are you a driven individual with an entrepreneurial spirit?

Since E.G.R. & Associates inception, we have help more individuals with strong professional spirit reached the American dream of business ownership.

E.G.R. & Associates provides an excellent opportunity for enterprising individuals. The ideal candidate is a self-starter, committed and conscientious, and someone who possesses strong interpersonal skills and – above all – enjoys helping others. You don’t need specific industry experience – just the desire to have more than a job! Our top Partners earn an amazing income and you can, too!

IF you are–

-sick and tired of being employee to someone else
-unable to fulfill your strong drive to achieve in doing what you are doing now
-not being appreciated in your current situation
-tired of problem solving for someone else
-searching to build your integrity and leadership skills
-sick of your current company’s management
-paying for someone else’s failure
-tired of dealing with unsatisfied customers
-stuck with poor geographical location
-facing with poor inventory management
-experiencing stagnant growth in your current position
-low sales in your current position
-not meeting ends meet
-paying bills expense faster than what you bring in
-not making enough money as you wish you did…

**Now is the Time to Partner with Us**

In addition to providing our associates with necessary training system and program guidance, we also help set our associate up in business for themselves and show them how to promote “You Enterprise”.

It can be both part-time and home-based. We provide a turn-key business system, that includes the products, the training, a support-structure, and we guide you through the 90 days E.G.R. program. It’s like a business in a box.

For a few select driven individuals we provide a personalized mentoring program, like an apprenticeship, in which we coach you on how to build a sales force and cultivate you to craft your own “You Enterprise” utilizing 90 days E.G.R. program.

Some of the benefits:

- Be your own boss, own your own business
- No quotas, no minimums
- Determine how much you want to earn (there’s no cap)
- Start part-time (stay part-time, if you choose)
- Set your own schedule, go your own pace, work your own hours
- Tremendous recognition program
- No territories, relocate if you choose
- Minimum start-up investment
- Flexible working location (can be telecommute, or office based)
- Potential for growth
- Proven business model – thrives in any type of economy
- Earning and growth potential are far greater
- Education and Training programs
- Increase time spent with your loves one
- Develop leadership skills
- No face-to-face selling

REQUIREMENTS:

- Entrepreneurial spirit
- Successful track record in previous/current field of employment
- 1-4 years of successful outside sales experience
- A track record of consistently meeting or exceeding sales objectives
- Strong prospecting and new business development skills
- A true hunter mentality and the ability to stay focused in a fast paced environment
- Excellent networking and relationship building skills
- Self-starter, committed, and conscientious
- Strong interpersonal skills
- Bilingual in Spanish is a plus, but not a requirement
- Bilingual in Japanese/Chinese is a plus, but not a requirement
- Intermediate computer and technical skills
- Understand the concept of blogging and online social networking

Please submit your resume to tim.rush@system-operated.biz

There’s never been a better time to join E.G.R. & Associates. So take control of your destiny by taking advantage of this opportunity and say hello to a brighter tomorrow. Apply now!

CLICK HERE TO EMAIL YOUR RESUME

*This opportunity is not a traditional job opportunity. An investment of money and time are required in order to generate income.*

If you sell group tickets then you want the quickest and easiest way to do this.  If you are group leader then you also want the quickest and easiest way to buy tickets.  So if you both want the same things, then how can it be so hard?

Group sales does take effort.  It is more then just owning a list and mailing a flyer.  Creating relationships is always the most direct path.  This is common sense yet so many group sales people don’t take the time or effort to make this happen.  You are a sales person; relationships are your best asset.  Ask anyone who sells in any industry.  The best sales people are the ones with the best relationships.

Think about how easy it is to sell something when you can just pick up the phone and call your group leader. They always find time to see you.  You know them on a first name basis.  You know what they like and dislike.  They know you on a first name basis.  They feel comfortable speaking with you.  They trust you.  But you can’t do this until you have earned it.

How do you seek out new relationships and maintain current ones: Get Out of the Office! 

Working at your desk every day is a bad habit.  I know you feel like you get more done when you are in your office, but you really don’t.  I understand how easy it is today to communicate via email, phone, snail mail, and the net.  You should look at these tools as a reward for your efforts, not for making the effort.  Face to face communication will always be the best tool.

Burling v. Real Stone Source, LLC

The case was before the Court on the parties’ respective motions for summary judgment on exemption issues. The Court agreed with Plaintiff that he was not subject to the outside sales exemption, and further held that issues of fact precluded a finding regarding the applicability of the administrative exemption. Here, we discuss only the portion of the decision pertaining to the outside sales exemption.

The Court first recited the relevant facts, “Mr. Burling, was employed as a sales representative from March 15, 2006 to November 29, 2007 by Defendant Real Stone Source, LLC, d/b/a Rox Pro. Real Stone is a distributor of Rox Pro products which is a natural modular stone system used in construction. (Dkt. No. 28,Dkt. No. 27-3, p. 37). Real Stone products are distributed exclusively through a network of local dealers from whom the ultimate consumer buys the product. (Dkt. No. 26, Ex. E). Mr. Burling was hired as a Real Stone sales representative for a seven state area comprised of Washington, Oregon, Idaho, Montana, Wyoming, Utah, and Colorado. Mr. Burling was tasked with contacting existing and potential local dealers and pitching Real Stone’s products to them. For prospective local dealers, Mr. Burling’s pitch was in an effort to get them interested in serving as a local dealer of Real Stone products. Once interested, Real Stone would determine whether the prospective dealer met its qualifications and, if so, approve them as a local dealer. For existing dealers, Mr. Burling continued to educate them on Real Stone Products and also aided them in selling Real Stone products through various efforts including promotions and outreach to consumers.”

Agreeing with Plaintiff, and the cases holding that the outside sales exemption can only apply where an employee makes actual sales, the Court said, “This Court finds the cases cited by Mr. Burling to be the correct analysis to apply here. See Kuzinski v. Schering Corp., 604 F.Supp.2d 385 (D.Conn. March 30, 2009). Although the California District Court cases cited by Real Stone discuss the FLSA, they were applying California Labor Law. Notably, the Barnick court recognized that there is a distinction between the FLSA and California Labor Law. There, the court stated that the employee’s argument that he was only promoting, not selling, because he never received commitments from the physicians was “likely a correct application of the distinction between promotion and sales laid down by the Department of Labor and several federal courts with regard to the FLSA” but that it did not apply to the California Labor Law. Barnick, 522 F.Supp.2d at 1264.FN2Where, as here, the case does not raise claims of California Labor Law but, instead, the FLSA, the analysis from cases applying the FLSA are more appropriately used. As such the Court will first consider whether Mr. Burling made sales as defined by the FLSA. See Kuzinski v. Schering Corp., 604 F.Supp.2d 385 (D.Conn. March 30, 2009).”

The Court adopted the reasoning of several of the pharmaceutical sales representative cases, stating, “[t]he Court finds Real Stone has failed its burden of demonstrating that, as a matter of law, Mr. Burling was an exempt outside salesperson. The facts in the record demonstrate that Mr. Burling did not make any sales. The Court rejects Real Stone’s theory that its sales representatives were a part of every sale in their territory. (Dkt. No. 27-3, pp. 109-111), (Dkt. No. 27-4, pp. 24, 51-52), (Dkt. No. 31-2, p. 103). Mr. Burling’s job was to create a network of local dealers, educate the local dealers and contractors about the product, and bolster consumer desire to purchase the product from the local dealers who in turn bought from Real Stone. (Dkt. No. 27-3, pp. 94-96). This is consistent in the depositions of both Mr. Burling and Mr. Motarex as well as Real Stone’s “Sales Philosophy and Market Strategy” document. (Dkt. No. 26-2, Ex. E), (Dkt. No. 27-3, pp. 96-111, Motarex Depo.), (Dkt. No. 27-3, pp. 54-66, Burling Depo.). Both Mr. Burling and Mr. Motarex testified that Real Stone sales representatives were hired to establish a network of dealers in their territory, provide sales support to those dealers by promoting the products and educating the consumers, and engaging in further advanced marketing strategies to “create buzz” for the products and increase consumer purchases from the dealers. (Dkt. No. 26-2, Ex. E). In sum, to “generate” and/or “drive” sales to the local dealers. (Dkt. No. 27-3, pp. 25-28), (Dkt. No. 31-2, pp. 93, 95-96).”

Ultimately, the Court concluded, “[b]ecause the facts here do not demonstrate that Mr. Burling actually made sales, the Court finds the outside salesperson exemption does not apply. Instead the facts show that Mr. Burling’s primary duty was to promote and market the Real Stone brand in such a way so as to create a network of local dealers in his territory and to bolster a market for the products such that consumers were continually buying the products from the local dealers. Accordingly, the Court will grant Mr. Burling’s motion for partial summary judgment on this point.”

Although not discussed at length here, the Court also analyzed the applicability of the claimed administrative exemption, before ultimately deciding issues of fact precluded a finding one way or another.

]]> http://deborahflate.wordpress.com/2009/06/25/why-targeting-selective-markets-captures-immediate-attention/ Thu, 25 Jun 2009 20:38:17 +0000 deborahflate http://deborahflate.wordpress.com/2009/06/25/why-targeting-selective-markets-captures-immediate-attention/

It’s all about VALUE.

Although there are similarities, branding (longer term) has significant differences from marketing.Everyone needs to focus on a target market!  You can cast a wide net, but it’s all about quality not quantity.  Quantity can sometimes bring time wasting activities.

 Sales people, designers, product companies and showrooms need to get their marketing message to their target market as quickly and efficiently as possible.  The days of just doing “business as usual” and relying on only referrals, advertising or even show houses can have you just waiting for business.  I am not suggesting these are not all good methods.  I am suggesting we need to be more specific as how and to whom we market our services and always add value.

Being pro-active about getting business is an essential part of your business plan.

Passive marketing is like “throwing spaghetti at a wall”, some sticks, some does not.  We need to make a concerted effort so we are not wasting precious time and resources. But first we need to ask ourselves specifically, who is that client?

1.) First step is to carefully and strategically define your target market.

Some examples of current target markets in design are:

1.        Green design
2.        Resorts/Spas
3.        Retirement/assisted living
4.        Historic design
5.         Empty nesters

2.) Once identified, you will need to find out where your target “lives.”  This means researching their buying habits, what they read, what associations they might belong to, what websites they visit, income and life-style, just to name a few. Defining that can ensure all your time, effort and money is targeted.

3.) You also need to think about how your target is changing their buying habits, direction, style, and how they are finding sources. Obviously an elderly person looking to downsize will read different magazines and attend different functions than a gen-xr looking to build a green home.

Once defined, your marketing message will then add VALUE to that target audience. It’s important to uncover this before and not just during your consultations with your clients. You will be providing value instead of being one of many designers they may be interviewing.  Instead of talking about what YOU can DO for them, it becomes about filling THEIR NEEDS.

" it's about putting time back into the hands we shake"

ABOUT US

“transparent outside sales solutions”

The Francis Lynn Agency is a breed of business that is unique to the Vancouver Island area.

Our agency provides professional sales representation for B2B businesses. Our expertise comes from working with small to medium businesses that have a need for initial or additional sales representation.

We are in an age where your potential customers have more choices and less time. Most companies have an amazing story to tell but have a hard time finding people who will listen.

Winning Selling Style

We see selling as a collaborative problem-solving conversation guided by a professional and resulting in a conjoint solution requiring the combined resources of a customer and a vendor to create a highly valued outcome.

We are well trained and fluent in a great mix of traditional and modern selling processes.

Francis Lynn Agency practices a transparent selling method that builds solid relationships. Our sales prowess and expertise allows us to transform from invited intruders to welcomed advisors at a much faster rate.

Francis Lynn Agency provides a low risk, high reward solution that is sure to increase your bottom line.

Launch Process – Outsourced Sales Costs

Launch works with emerging, mid-sized companies, and start-up ventures in many ways. The core to all of our services is to drive sales to create revenue for our client’s business. Our services listed below are priced on a monthly fee plus commission structure.

Full Time Inside Sales Operation

• Appointment Setting
• Sales and Development Strategy
• Sales Consulting, Strategy and Process
• New Client Acquisition
• New Product Launch
• New Market Penetration
• Speed to Market Sales
• Geographic Specific Sales
• Scalable Inside Sales Force
• Detailed Reporting and Analytics.

Lead Generation Methods:

• List Acquisition
• Pay-per-lead
• Voice-Broadcasting
• Robo-Dialing
• Auto-Dialing
• Email Campaigns
• SMS Mobile Text Message Marketing

Discounted services Launch offers through it’s strategic partnerships:

• SEO – Search Engine Optimization
• PPC – Pay-per-click Management
• SEM – Search Engine Marketing
• CRM – Customer Relationship Management Software
• Inside Sales Automation Software Solutions for Lead Generation and Sales Follow-up

Focus on what you know best. Outsource the rest. Contact Launch to boost your sales revenue: Sales@launchsalesandmarketing.com or Call 801-400-8968.

I can tell you, first hand, that Social Media is not a choice anymore, but a necessity! Just try to think of it as free advertising, building your network, building your brand and visibility.  

I have been in the interior design industry for more than 25 years and I understand how low tech we tend to be.  We spend most of our time on the creative end.  But the days of  being proactive by using Social Media are here for us all!

There are typically four major Social Networking venues.  Facebook. Linkedin, Twitter and Blogging.  You can choose the one which fits your lifestyle, time allotment and which you can do most effectively. You can also choose  more than one, if your time and resources allow.

For me, I have chosen to use Linkedin and Blogging with a sprinkling of Twitter.  It’s really important not to take on too much at a time.  Master one at a time.  If you are not effective at using a Social Media platform, it will not be as useful and it will get overwhelming.

As a small example of how this can work, I posted a question on just two of my Linkedin groups about giving a textile workshop.  It took me about 10 minutes or less to post.  Within one day I got four really great answers, two that were interested in the workshop and two others that gave me tons of good information!  And one of the people is interested in collaborating on a project with me! That’s worth 10 minutes, don’t you think?

I have only been using Social Media since last December and have just met tons of really cool people all around the country (and world) who have become my cyberpals!  They now all know about my company and what I do. I could have never done that without Social Media.  And the more I use it, the more people will also know!

Need more input of it’s effectiveness?  I “tweeked” this from www.about.com.

1. We can use social media to provide an identity to who we are and the products or services that we offer.
2.  We can create relationships using social media with people who might not otherwise know about our products or service or what our companies represent.
3.  Social media makes us “real” to clients. If you want people to follow you don’t just talk about the latest product news, but share your personality with them.
4.  We can use social media to associate ourselves with our peers, that may be serving the same target market.
5.  We can use social media to communicate and provide the interaction that clients look for.

So I say, go sign up on Linkedin, go tweet and follow people in the industry, start to blog, sign up on Facebook.  Choose just one to start and get into the stream of Social Media before you are left behind!

 I have learned that when you engage a client, genuinely show interest in that person and ask open ended questions, sales grow faster!  It’s about them knowing, liking and trusting you.

The other day, I went to Best Buy (yes that huge, overwhelming electronics store).  I needed a DVD player right now!  Now, mind you, I always do my research in advance of my entering any store. Why? Because there have been far too many times I have been sadly disappointed with “sales people” welcoming me to the store only to say “everything is out” when I ask a question.  Or reading the package (like I CAN”T do that!) when asked a question.  Bottom line, NO HELP AT ALL.

“Hi, my name is “Jack”, and you are?” as he put his hand out to shake it.  Wow, was I ever taken by surprise that he did not have the old pat “may I help you?”  What a great and novel “icebreaker”.  AND if I have to buy another product from Best Buy, I got his card and will ask for him! 

“Jack”  had about 10 seconds to “win me over” and he did by breaking the ice with a simple introduction instead of asking if he can help me.  How many clients respond “no” when asked “may I help you?”

If we take the Jerry McGuire approach, we will ask our clients to help us help them.  I can tell you the way NOT to help is to ask that dreaded question.  It’s pat, many times perceived as disingenuous and a closed ended question.  What can you say after a “no”?

If a client comes into a showroom, try an introduction or a complement (sincere!) or just plain small talk. Let’s invite the clients in, let them feel more comfortable before diving into selling.  It’s like inviting someone into your home.  You allow them to get comfortable, don’t you?

Let’s all learn from “Jack’s” approach.  We can all use better and different icebreakers.  Let’s try to wipe out the phrase “may I help you?” when we know the answer will probably be “no” unless there is an immediate need.  Let’s try to get one step closer to getting that client to know, like and trust us. Let’s ENGAGE the client. Then we are working on a relationship filled with sales  instead of making just one sale.

21 Reasons to outsource all or part of your sales process.

1. Reduce costs and risks of hiring and employing.
2. Save time recruiting and managing sales personnel; such as holding them accountable, motivating, worrying about commission payouts, etc.
3. Scalable sales force on an as needed basis.
4. Exisiting sales force is missing key opportunities or is understaffed.
5. Reduced turnover costs and turnover management.
6. More flexibility with your sales team.
7. Sell to underserved territories or across the nation.
8. Ability to focus on your core business needs: products and services.
9. Launch new products without a long term commitment.
10. Speed-to-market. Be the first to market before your competition.
11. Lowered cost per client acquisition.
12. Higher dollar amount per sale average.
13. The ability to reach all lead flow. Following up on older and cold leads.
14. Higher activity per sales person.
15. Higher closing ratio per sales professional.
16. Shorter sales cycle.
17. Sales professionals are in the most optimized sales environment.
18. Greater relationships with prospects and clients.
19. More effective lead generation and prospecting.
20. More detailed reporting and analytics.
21. Acheive fast results and revenue growth, with less risk of your time and money.

Let Launch take your sales to the next level of growth and higher revenue.

Contact us at Sales@launchsalesandmarketing.com or call 801-400-8968.

www.launchsalesandmarketing.com

On May 5, the 9th Circuit Court of Appeals certified the question of exempt status (under California state law) of pharmaceutical sales representatives to the California Supreme Court.

The 9^th Circuit asked for guidance from the California Supreme Court to determine two issues, pertaining to the oft-litigated issues of whether Pharmaceutical Sales Reps are outside sales exempt and/or administrative exempt under those so-called exemptions in the California Wage and Hour law, which is similar to the FLSA. The first question focuses on whether or not pharmaceutical representatives fall within the “outside sales exemption.”  The other question focuses on the administrative exemption and whether or not application is applicable to the pharmaceutical sales reps at issue as well.

Pharmaceutical sales reps across the country will be watching this and other key cases in the months to come. If you worked as a pharmaceutical sales rep within the last 3 years, you may may entitled to overtime pay which was incorrectly denied to you, if you worked more than 40 hours per week.

Call 1-888-OVERTIME or visit http://www.overtimeadvocate.com to learn more about your overtime rights today.

About Launch Sales and Marketing LLC:

Launch Sales and Marketing LLC provides high quality, scalable, and expert outsourced sales and marketing for businesses. The primary focus is B2B inside sales for technology products and services companies. Launch was started with the passion to bring high quality sales solutions to businesses across the country. Launch helps businesses test markets, have speed-to-market, and to scale nationally.

Located in beautiful Salt Lake City, UT, Launch has positioned itself with excellent talent, partners, and advisory panel to ensure its success. Launch was started during the economic downturn and has succeeded to grow itself as well as its clients revenue all while surrounded by turmoil and uncertainty in the marketplace.

Launch Sales and Marketing LLC is your business-to-business inside sales solution. Whether you are an established firm or a start-up that wants to grow faster, unveil a new product/service, add sales revenue, or scale nationally: Launch is the answer.

Salt Lake City, UT is a playground for the outdoor enthusiast, surrounded by world-class ski resorts (2002 Winter Olympics) and moutnain/road biking, camping, hiking, boating opportunities during the rest of the year. Utah’s lower cost of living and strong communities make it a family friendly place to live. Utah boasts its successful economy and low unemployement rate to it’s thriving entrepreneurial environment.

Launch Sales and Marketing LLC is a product of Junto Partners, founded by Alan Hall and Greg Warnock (Managing Partners of Mercato Partners) who said,”Entrepreneurship can solve problems, create value, unlock human potential, improve lives and foster independence and confidence.” The Junto Partners program leads entrepreneurs in a journey of self discovery regarding their true aptitude in becoming successful entrepreneurs.

www.launchsalesandmarketing.com

Thanks for reading.

At Launch Sales and Marketing, we have a business process to ensure the best results are delivered to each company.
Steps:

1. We interview and research each company to see if they are a good fit for our model and if we fit theirs.

2. We send an account executive/consultant to work closely with the companies sales and marketing teams for 1-3 months to become an expert on their product/service, industry, potential clients, marketing processes, etc.

3. Also, during that time period, the consultant will be building a pipeline with the leads that are given him.

4. At the end of the paid consulting time period, Launch is then capable of finding, recruiting, hiring, training, and managing the best fit sales people for that organization.

5. The sales people hired work for Launch Sales and Marketing LLC and represent our clients product or service. The amount of sales people hired will be determined on the quantity and quality of leads that are being provided by that company.

6. Launch increases sales, closing ratios, revenue, and growth for the company.

Our site www.launchsalesandmarketing.com is being completed. We apologize for the inconvenience.

Please contact us at 801-400-8968 or you can email brandtpage (at) gmail.com

Baum v. AstraZeneca LP

Addressing the oft-raised (recently) issue of whether pharmaceutical sales representative employees are subject to the Outside Sales exemption, the District Court answered the question in the affirmative and granted Defendant’s Motion for Summary Judgment on the issue. The Court went through a strained analysis of the pharmaceutical industry to reach this conclusion, and ultimately, seems to have refused to follow the long-standing mandate of FLSA construction that exemptions be narrowly construed against employers asserting them. The Court ultimately determined that the promotional work that sales reps do as their primary duty represents “sales” within the meaning of the FLSA, despite the fact that the sales reps do not actually obtain sales from anyone.

“The Court now returns to the definition of “sale”, and the somewhat related question of when a sale actually occurs. Obviously, a pharmaceutical sale is not exactly final until the patient herself completes a transaction by taking the physician permission slip (prescription) to a pharmacist for completion of the sale. However, the statutory language does not require a final sale, complete and consummated. Thus, pursuant to the above industry specifics, the Court believes that a “sale” may be defined as substantially occurring at the moment a physician commits to prescribing a particular pharmaceutical when treating a particular patient. In Clements v. Serco, in considering this question under the FLSA, the Tenth Circuit explained: “the touchstone for making a sale, under the Federal Regulations, is obtaining a commitment.” 530 F.3d 1224, 1227 (10th Cir.2008). Importantly, the facts of the case sub judice illustrate that the PSS’s were trained and employed for the purpose of obtaining a commitment, which is the “touchstone” for making a sale.

The Court concludes that in the pharmaceutical industry, the strongest evidence for sales activity and being employed for the purpose of making sales, is that the employee obtains commitments from physicians. Ms. Baum did precisely that: after carefully preparation and planning, she skillfully asked physicians for commitments to prescribe AstraZeneca products in appropriate situations. The capacity of a salesperson to obtain such commitments, in any field, is rare, and consequently well-compensated by private industry; the effort and charisma required to successfully close, as will be discussed infra, is a hallmark of professional sales activity.

Consequently, the Court holds that in the pharmaceutical context, given the realities of the professional paradigm, a sale occurs when a physician commits to prescribe a certain product in a certain situation. Therefore, the Court believes that a pharmaceutical sales representative, upon obtaining a commitment from a physician, has “in some sense” made a sale. See Dep’t of Labor, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule, Fed.Reg. 22122, 22162-63 (Apr. 23, 2004). Relatedly, where a pharmaceutical sales representative seeks to obtain a physician’s professional commitment to prescribe certain pharmaceuticals, that representative was engaged in making sales. Importantly, Ms. Baum was not visiting the physician only to provide some education or background to pave the way, or prepare the physician for another appointment with a primary salesperson.

This Court believes that other courts, and perhaps regulatory agencies, underestimate the significance of this oral commitment from physicians. In part, this error emerges from a misunderstanding of the ways in which human beings are socially and informally motivated. Sometimes lawyers and judges forget that a person’s word means something; remarkably, many people do not actually need a 400-page contract to bind themselves to their word. Yale’s Yochai Benklar, a thinker with incisive prescience, explains that non-market intrinsic factors can serve as a more powerful motivating force than typical extrinsic economic incentives; applying such a theory to this situation, it is possible to imagine one business that thrives over time, enjoying ongoing, non-contractual relationships with its clientele, while a nearly identical business falters, its obsession with formalized contracts driving away a clientele socially frustrated with the non-trusting relationship. In short, this Court believes that one professional’s commitment may be worth more in sales volume than a hundred firm orders from a insolvent or dishonest source. A proper critique of this interpretation of “sale” is that such reasoning, if applied in a broader sense across industries, would quickly arrive at an unsustainable breaking point. However, this Court is not broadening the definition of “sale”, but simply seeking to understand and apply the definition within this particular industry. See In Re Novartis Wage and Hour Lit., 593 F.Supp.2d 637, 659 (“Reps make sales in the sense that sales are made in the pharmaceutical industry.”). For all of the above reasons, this Court, in performing its own construction and application of this statutory exemption, finds that in the pharmaceutical context, where a representative asks for a commitment from a physician, such activity is sales activity for the purposes of the Pennsylvania outside sales exemption.

Admittedly, this construction and application has its weaker points: obviously, not every sale defined this way will actually result in the delivery of a pharmaceutical in exchange for legal tender. Furthermore, other courts, assessing different industries, have held that individuals seeking to obtain commitments are not necessarily performing exempt sales activity. See, e.g., Clements v. Serco, 530 F.3d 1224, 1227 (10th Cir.2008). Ms. Baum’s briefing hopes to capitalize upon this particular weak point, arguing that even when a physician commits to writing a prescription for AstraZeneca’s pharmaceuticals, this commitment is certainly not binding upon either the physician or a patient. However, the rationale of such a critique could be equally applied to sales transactions in simpler fields. For instance, where a hypothetical Mr. Loman sells a widget, but the widget is ultimately returned six months later under a warranty claim, did a sale actually occur? Was the sale binding? Given this country’s aggressive implied warranty laws, is any sale ever binding? While the Court is certain that Mr. Loman engaged in the process of making sales or obtaining orders, the question presents itself: is any traditional sale more or less binding than a commitment sought and obtained from a honest and thoughtful physician? Admittedly, in the pharmaceutical context, obtaining a commitment from a doctor may not be a formal, binding contract that inexorably leads to the exchange of goods and services. However, the Court believes such formalities are simply not necessary for a “sale” to occur. The Court notes that private companies perhaps have a wiser approach to discerning what constitutes a sale: rather than wasting effort and energy arguing about how to apply abstract and reduced definitions to diverse industries, such companies simply find and execute the methods that work to increase sales; notably, pharmaceutical companies have all decided to employ large, direct sales forces to visit physicians.

The Court also acknowledges that physicians are not the only customer involved in the sale of pharmaceuticals. However, it cannot be argued that physicians are not an integral and essential gatekeeper within this sales process. In some, likely most, instances, physicians will be the dispositive force behind a sale. Furthermore, in all instances, a physician’s approval and consent to the sale is ultimately necessary. Other courts, in expressing their analyses of this pharmaceutical sales dynamic, have similarly stated the integral role of physicians in the sale of a pharmaceutical. See Barnick v. Wyeth, 522 F.Supp.2d 1257, 1264 (C.D.Cal.2007)(explaining that because physicians “determine whether or not a patient will buy a prescription product”, the physicians themselves are the appropriate target of sales efforts); see also D’Este v. Bayer Corp., No. 07-cv-3206, 2007 U.S. Dist. LEXIS 87229, at *14 (C.D.Cal. Oct. 9, 2007) (emphasizing that the doctor places the order for the prescription product by writing a prescription).

In sum, in a determination unnecessary to present to a jury, and following an analysis of the dynamics of the industry, this Court finds that where pharmaceutical representatives seek to obtain physician commitments to write prescriptions, these representatives make sales and are engaged in the process of making sales for purposes of Pennsylvania’s outside sales exemption. In the alternative, this Court notes that a similar analysis could also be applied to pharmaceutical sales representatives “obtaining orders.” Consequently, a pharmaceutical sales representative performing duties similar to those performed by Ms. Baum, including visiting the offices of physicians for the purposes of obtaining commitments, meets this requirement of the outside sales exemption.”

Kuzinski v. Schering Corp.

Plaintiffs initiated this suit against Schering Corporation, their former employer, for relief from Defendant’s alleged misclassification of them as “exempt” employees resulting in its failure to pay them overtime wages, in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. Defendant moved for summary judgment on the ground that Plaintiffs fall within the FLSA’s outside sales exemption. After an extensive review and discussion of the record evidence, the Court denied Defendant’s motion for summary judgment.

In denying Defendant’s motion, the Court made clear that the promotional work which Plaintiffs, as pharmaceutical sales reps, performed for Defendant was not “sales” within the meaning of the FLSA. The Court addressed head-on supporting cases as well as those which Defendant had argued supported a contrary finding:

“Under the FLSA, the term ” ‘[s]ale’ or ’sell’ includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition,”29 U.S.C. § 203(k), and also “include[s] the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property,”29 C.F.R. § 541.501(b). Schering’s PSRs do not make, or engage in, any of these things. PSRs do not consummate or make any “sales” of pharmaceuticals to the physicians they visit. PSRs do not “exchange” with physicians for any drugs; they do not make any “contract[s] to sell” drugs to physicians; they do not make any “consignment for sale” with physicians; FN13 they do not make any “shipment[s] for sale” to physicians; and they do not make any “other disposition” of drugs with physicians.FN14 PSRs also do not “transfer [pharmaceuticals] for a price.” Cf.BLACK’S LAW DICTIONARY 1364 (8th ed.2004) (defining “sale”).

FN13. That is, PSRs do not “commit,” “dedicate,” “deliver,” “transfer,” “give” or “hand over possession” drugs into the physicians’ “custody,” or “entrust” drugs to physicians, for a later sale. See BLACK’S LAW DICTIONARY 327 (8th ed.2004) (defining “consign” and “consignment”); WEBSTER’S II DICTIONARY 157 (3d ed.2005) (same).

FN14. Plaintiffs did not “transfer[ ] something to [a physician's] care or possession” including “by deed or will,” and they did not engage in the “relinquishment of property” to physicians. See BLACK’S LAW DICTIONARY 505 (8th ed.2004) (defining “disposition”). Given this meaning of “disposition,” Defendant’s argument that the regulation’s catch-all term “other disposition” encompasses in its scope activities such as those performed by Plaintiffs is unavailing. Were the Court to construe the phrase “other disposition” broadly enough to encompass PSRs’ visits with physicians (see Def.’s Mem. Supp. at 22 (emphasizing phrase); Oral Arg. Tr. at 40:5-41:15 (Schering arguing that the phrase “allow[s] for those instances where there cannot be a direct interaction between the salesman and the purchaser”)), it would substantially expand the outside sales exemption, in direct contravention of its mandate to construe the exemption narrowly and within its plain terms.

Moreover, PSRs and physicians do not even have the capacity to consummate sales. Schering’s PSRs, like Boehringer’s PSRs, are barred both by law and by their employer from entering into contracts or binding commitments with physicians for the prescription of their employer’s products. Cf. Ruggeri I, 585 F.Supp.2d at 267-68 (PSRs “do not and cannot make or produce” sales); accord Smith, 2008 WL 5427802, *7, 2008 U.S. Dist. LEXIS 104952, *20-*21 (“in no ordinary sense of the word ‘consummation’ could one of [the PSR's] sales calls end in the consummation of a sale. [The PSR] could only provide useful information to the physician, and could not enter into an agreement regarding prescriptions by the physician.”). And physicians neither have nor exercise the capacity to make binding commitments to purchase or prescribe pharmaceuticals promoted by Schering’s PSRs. DeFeo testified that physicians never order pharmaceuticals directly from Schering even in potential “emergency” situations, when they would obtain them directly through a “group purchasing organization,” and in any event ethical and legal obligations bar physicians from “mak[ing] a binding commitment to a[PSR] to prescribe certain [pharmaceutical] products.” In re Novartis, 593 F.Supp.2d at 650;see also Ruggeri I, 585 F.Supp.2d at 268 (“physicians do not have ‘the capacity to purchase or place an order for’… pharmaceutical products”).

The conclusion that PSRs fall within the outside sales exemption from FLSA’s overtime provisions on the basis of “the characteristics of the industry in question,” In re Novartis, 593 F.Supp.2d at 649,“[n]otwithstanding PSRs’ lack of capacity to sell, and physicians’ lack of capacity to purchase,”see Ruggeri I, 585 F.Supp.2d at 268, appears to be the back-fitting of the FLSA to industry practices which this Court has rejected, see id. at 272;see also Clements, 530 F.3d at 1227 (“[t]he touchstone for making a sale, under the Federal Regulations, is obtaining a commitment.”); Smith, 2008 WL 5427802, *7, 2008 U.S. Dist. LEXIS 104952, *19 (“[p]hysicians … do indeed present a chokepoint in the sale of pharmaceuticals, but the nature of the prescription system insulates them from being amenable to ’sales’ within the definition of the applicable regulation”).In re Novartis’s focus on a pharmaceutical product’s “purchase cycle,” which “commences” with a physician writing a prescription for the product for a patient, In re Novartis, 593 F.Supp.2d at 650-51, and which, in this case, presumably would continue through a patient’s filling the prescription at a pharmacy, to the pharmacy’s re-ordering the product from a wholesaler, who then places an order for additional product with the “trade organization” and “legal team” operating under Schering’s managed markets group, is not what the PSRs do, which excludes it from the relevant inquiry for FLSA purposes.

As DeFeo’s testimony and Plaintiffs’ declarations illustrate, the closest that Schering’s PSRs come to consummating “sales” is increasing the overall demand for its products, such that non-PSR Schering employees negotiate and commit to contracts with wholesalers-not the physicians to whom Schering’s products are promoted. An employee does not consummate a “sale” for purposes of the FLSA merely by “lay[ing] the groundwork” for another employee to obtain a customer’s commitment. Clements, 530 F.3d at 1229;29 C.F.R. § 541.503(a) (even though promotional work can be considered exempt sales work, “promotional work that is incidental to sales made, or to be made, by someone else is not exempt outside sales work”) (emphasis added). Here, not only do the PSRs not consummate the sales, but the physicians with whom the PSRs visit are not Schering’s customers. To the extent PSRs lay foundation or groundwork, it is to increase or maintain their employer’s market share for the products they promote. In this sense they pave the way for sales but in no more direct a manner as a pharmaceutical company’s direct-to-consumer advertising, which raises demand for that company’s products. Neither of these activities constitutes “sales” under the FLSA.

The Eleventh Circuit’s decision in Gregory v. First Title of America, Inc. is not to the contrary. There, the court held that an insurer’s “marketing executive” made sales-and thus was an exempt outside salesperson-because “[o]nce an order for title insurance services is obtained [by the plaintiff], the sale is complete.” 555 F.3d 1300, 1309 (11th Cir.2009) (first alteration in original). The court relied on the fact that the plaintiff “did not collect orders and turn them over to another salesperson,” and there was no “evidence of any other intervening sales effort between [the plaintiff] and orders placed with [the employer],” such that “[a]s opposed to conceiving of [the plaintiff] as ‘paving the way’ for others to consummate the sale, we view her as acting more as a conduit through which orders for services flowed.”Id. The critical difference between the work of First Title’s marketing executive and Schering’s PSRs is obvious: whereas the marketing executive did all of the work necessary to reach an agreement with a customer, PSRs do not even communicate with the entities to which Schering sells its products, let alone negotiate the contracts or process the orders by which its products are sold.

Some courts concluding that PSRs “sell” pharmaceutical products within the meaning of the FLSA have looked to IMS Health Inc. v. Ayotte, 550 F.3d 42 (1st Cir.2008). There, the court was faced with a constitutional challenge to the Prescription Information Law, a New Hampshire statute affecting PSRs’ work by preventing the use ” ‘for any commercial purpose’ ” of information about pharmaceutical prescriptions containing any ” ‘patient-identifiable and prescriber-identifiable data.’ ” Id. at 47 (quoting N.H.Rev.Stat. Ann. § 318:47-f). In the course of lengthy opinions upholding the constitutionality of the law, both the majority and concurrence/dissent described generally the work of PSRs-in the First Circuit’s parlance, “detailers”-within the pharmaceutical industry. The majority described each part of the state’s evidence that its law “directly advances [its] interest” of “cost containment” as “forg[ing] some part of the causal chain leading from transfers of prescribers’ histories for use in detailing to higher drug prices,” id. at 55, and stated: “[d]etailing works: that it succeeds in inducing physicians to prescribe larger quantities of brand-name drugs seems clear (even if the exact magnitude of that effect is not),” id. at 56.In an opinion concurring and dissenting, one member of the panel used the word “sales” in describing the efficacy of PSRs’ efforts: “Detailing is the face-to-face advocacy of a product by sales representatives who visit doctors’ offices and hospitals to meet with the prescribing health care professionals. Although the objective of these visits is to make sales, detailers often provide valuable information about the drugs they are selling.” Id. at 71 (Lipez, J., concurring and dissenting).”

In denying Defendant’s motion, the Court further stated, “[i]t is the clarity of the statutory and regulatory language at issue defining the conduct and activity which constitutes “selling” or making a “sale” which undermines Schering’s use of the term “sales” to classify PSRs’ work as exempt from FLSA’s overtime pay provisions and which renders unpersuasive other cases’ characterizations of PSRs’ work. Because PSRs undisputedly do not “sell” or make any “sales” as those terms are defined in the FLSA and its implementing regulations, they fall outside the FLSA’s outside sales exemption.”

POSITION SPECIFICATION

Regional Account Executive – Various Regions – US

February 2009

About the Company:

The company is a leading SaaS provider of on-demand e-learning and performance support solutions for global enterprises, government, education, and small to mid sized businesses.  The company enables business organizations to maximize business performance through a combination of comprehensive e-learning content, on-line information resources, flexible learning technologies, and support services.

Position Location:

Virtual offices throughout the US

Position Description:

The successful candidate will have experience and a track record of successful sales and business development into Fortune 2000 companies.  The Regional Account Executive is a combination farmer/hunter role.  The company will provide this individual with a solid customer base to begin with (approx. 12-15 named accounts for renewal or upselling). The new business development will require prospecting, cold calling, and face to face meetings with c-level executives.  RAE’s are given goals and timeframes to develop their portfolios. 

Qualifications:

• A track record of success in solution/consultative selling to Fortune 2000 companies
• A history of exceeding annual sales quotas
• The ability to manage major account sales cycles with global Fortune 2000 organizations.  Must understand sales cycles and know how to leverage each stage in the cycle.
• Key contacts within the training industry would be ideal
• Proven ability to prospect and manage a designated territory to maximize revenue growth
• Ability to interface with and call into c-level executives
• Strong cold calling and prospecting skills.

Why Consider this Opportunity?

• The E-learning industry is healthy and growing.  The company is the world leader in e-learning content. 
• The company has experienced six years of quarter over quarter growth and profit. 
• The E-learning industry is largely recession proof.  All companies need training, be it technical, compliance, or other in order to compete.
• The company has high employee morale and very little turnover.
• Casual and team oriented work environment.

Compensation:

$90K base with on target earnings at quota of $245K.

For more information, contact:

Jackie Benton

Project Manager

DuffyGroup, Inc.

Toll free 800-903-0710

jbenton@duffygroup.com

salesman are annoying mofos

“Buy my Worthless Shit to Make Me Undeserving Money”

Regardless of the American business you deal with on a regular basis you will have to deal with sales people.

The purpose of sales people is obvious.   Large and small companies alike know that the American people on average are about as stupid as retards trying to spell the word retard.

So what they do, is find the most obnoxious, annoying assholes to pitch their products to 1.  everybody who does not need them, and 2. people who hate salesman and 3. Everyone who doesn’t need them again, and 4.  People who hate salesman again.

The Point is, People who want to Buy a Good or Service Aren’t Influenced by Salesman

The way America works is annoying ex-frat boys who want to make money for being themsleves (arrogant, narrowminded, pushy assholes) get a job trying to get idiots to buy shit they don’t need.

When you go into a store the salesman obviously don’t give a rat’s ass about you.  What they do, is sell, sell, sell and when you don’t buy they find someone else and sell sell sell.

What’s Worse than going to a Store and Dealing with Sales People ?

Try living with one, conversing with one or being married to one.  It is like coming your hair with a nail covered 2×4.  These annoying sons of bitches talk talk talk about what?  Sales sales sales.

Just writing about sales people is enough to make a blogger want to jump off of the Empire State Building and the final words are simply Sales People:  one of 58 Reasons to Hate America.