Hurt v. Commerce Energy, Inc., 92 F. Supp. 3d 683

Plaintiffs are door-to-door workers selling energy services and were paid commissions for finalized contracts.
The court trial addressed whether Plaintiffs fall under the outside sales exemption and whether BNUs earned overtime under Ohio law.
Defendants argued Plaintiffs were exempt outside salespeople and that BNUs had no overtime liability; the court denied these motions at trial.
The jury found liability under the FLSA and Ohio Wage Act, and Defendants moved for judgment as a matter of law, a new trial, or an interlocutory appeal.
The court ultimately denied all three defenses and left damages for the subsequent phase.
The court emphasized that nonbinding customer applications and regulatory context were key to determining whether sales occurred and whether exemptions apply.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Outside sales exemption sufficiency	Plaintiffs presented indicia of sales activity and binding effects.	Defendants contended Plaintiffs met primary duties of outside sales.	Evidence supported the jury’s finding; JML denied.
BNU overtime liability evidence	BNUs contributed to class liability for overtime under Ohio law.	There was insufficient proof BNUs worked 40+ hours per week.	Sufficient evidence supported liability; sub-class issues remain for damages.
FLSA waiver instruction prejudice	Waiver instruction was correct and needed to preserve law.	Instruction was prejudicial and influenced jury.	No reversible error; instructions not prejudicial.
Interlocutory appeal viability	Question on Christopher application is controlling and certworthy.	Issue not controlling; retrial possible; no immediate efficiency gain.	Interlocutory appeal denied.

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (U.S. 2012) (industry-specific exemption; nonbinding commitments may suffice in unique regulatory environments)
Nielsen v. DeVry, Inc., 302 F. Supp. 2d 747 (W.D. Mich. 2003) (outside sales analysis with nonbinding processes)
Clements v. Serco, Inc., 530 F.3d 1224 (10th Cir. 2008) (recruiting vs. actual sales in determining outside sales status)
Wirtz v. Keystone Readers Serv., Inc., 418 F.2d 249 (5th Cir. 1969) (gathering lists vs. finalizing sales; discretion retained by employer)
King v. Ford Motor Co., 209 F.3d 886 (6th Cir. 2000) (outside sales exemption framework in Sixth Circuit)
Monette v. AM-7-7 Baking Co., 929 F.2d 276 (6th Cir. 1991) (evidence and standards for JML analysis)