Nielsen v. Devry, Inc.’s Empirical Analysis

Citation profile

4 federal appellate · 5 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 21 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[T]he Department agrees that technological changes in how orders are taken and processed should not preclude the exemption for employees who in some sense make the sales. Employees have a primary duty of making sales if they “obtain a commitment to buy” from the customer and are credited with the sale. See 1949 Weiss Report at 83 (“In borderline cases the test is whether the person is actually engaged in activities directed toward the consummation of his own sales, at least to the extent of obtaining a commitment to buy from the person to whom he is selling. If his efforts are directed toward stimulating the sales of his company generally rather than the consummation of his own specific sales his activities are not exempt”) .... Exempt status should not depend on whether it is the sales employee or the customer who types the order into a computer system and hits the return button. The changes to proposed section 541.503(c) are intended to avoid such a result.”

   2 later decisions quote this exact passage · from the majority
   e.g. Gregory v. First Title of America, Inc. · Barnick v. Wyeth

2. “Another example is a company representative who visits chain stores, arranges the merchandise on shelves, replenishes stock by replacing old with new merchandise, sets up displays and consults with the store manager when inventory runs low, but does not obtain a commitment for additional purchases. The arrangement of merchandise on the shelves or the replenishing of stock is not exempt work unless it is incidental to and in conjunction with the employee’s own outside sales. Because the employee in this instance does not consummate the sale nor direct efforts toward the consummation of a sale, the work is not exempt outside sales work.”

   1 later decision quote this exact passage · from the majority
   e.g. 765 F. Supp. 2d 1185 - Campanelli v. Hershey Co.

3. “Section 541.5 requires that an outside salesman be customarily and regularly engaged “away from his employer’s place or places of business”. This requirement is based on the obvious connotation of the word “outside” in the term “outside salesman”. It would obviously lie beyond the scope of the Administrator’s authority that “outside salesman” should be construed to include inside salesmen. Inside sales and other inside work ... is nonexempt. Characteristically, the outside salesman is one who makes his sales at his customer’s place of business. This is the reverse of sales made by mail or telephone.”

   1 later decision quote this exact passage · from the majority
   e.g. 372 F. Supp. 2d 465 - McLaughlin v. Murphy