Because most FLSA exemptions are affirmative defenses, their applicability is not often established by the Plaintiff’s Complaint, of which s/he is “master” and can shape to avoid addressing exemption-triggering duties. There are exceptions. In a recent opinion, a Manhattan federal district judge ruled that a commissioned salesman who traveled from his home office to conduct jewelry sales at customers’ places of business qualified as an exempt outside salesperson under the FLSA and New York Labor Law based on his own Complaint’s allegations. Cangelosi v. Gabriel Bros, Inc., 15-cv-3736 (JMF), 2015 U.S. Dist. LEXIS 140579 (S.D.N.Y. Oct. 15, 2015).
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