Two Circuit Courts have held service advisers are exempt “salesmen” within the meaning of 29 U.S.C. 213(b)(10). But the Ninth Circuit thinks otherwise, deferring to USDOL guidance and finding the exemption inapplicable. Navarro v. Encino Motorcars, LLC, 2015 U.S. App. LEXIS 4773 (9th Cir. Mar. 24, 2015).

Encino Motorcars concerned the exemption applicable to automobile dealership employees working as a “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” from overtime. The court acknowledged that there were “good arguments supporting both interpretations of the exemption,” but found it appropriate to defer to the DOL’s interpretation under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). In 2011 the USDOL concluded service advisors are not salesmen. “Where there are two reasonable ways to read the statutory text, and the agency has chosen one interpretation,” the Court held, “we must defer to that choice.”

The creation of this Circuit split may mean the Supreme Court will consider taking on this exemption issue, the Court’s first review of the applicability of a specific exemption since its 2012 ruling regarding pharmaceutical sales representatives in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012).