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The following is not meant to be legal advice.

The F.L.S.A. provides for forty-nine exemptions to overtime pay entitlement.  See 29 C.F.R. § 541.4 if interested.  To qualify for an inside sales exemption under section 7(i) of the F.L.S.A., an employee must:  (1) be employed by a retail or service establishment; (2) be compensated at least one and one half times (1½) the minimum wage (this is $7.73 per hour); and (3) receive more than half of his compensation from commissions during a representative period (this means not less than one month). 

Based on the F.L.S.A, there is an “inside sales exemption” in New York.  New York state law applies the federal salary and duties requirements if the employee is covered by both state and federal law.  This is according to N.Y. Labor Law, art. 19 §651. 

Any employee in New York is exempt from state overtime law if they are exempt under any of the F.L.S.A.’s overtime rules.  In Schwind v. E.W. & Associates, Inc., 2005 U.S. Dist. LEXIS 10196 (SDNY 2005), the New York federal district court allowed for a broader interpretation of employees who qualify as exempt under the F.L.S.A.’s Inside Sales exemption.  The court broadened the definition of “retail or services establishment” under the first prong of the relevant exemption test.

Under the F.L.S.A., commissions can include earnings from a bona fide commission rate.  These employees usually work where commissions have traditionally been used, such as furniture, major appliances, electronics, clothing, shoes, and flooring departments in retail establishments.