Malcolm L. Stewart, of the Department of Justice, argued for the United States on behalf of the petitioners as amicus curiae.
As to the definition of "sale," Stewart
noted that the DOL
regulations have, for more than 60 years, defined a sale as including a transfer of title and, while in theory the verb "includes" within the statutory text could leave open the possibility that other things could be included as well, "we've never encountered a situation in which DOL has found a sale of goods without a transfer of title."
The coverage section of the FLSA regulation at 779.241 provides that "if an employee performs any work that in a practical sense is an essential part of consummating the sale of the goods, he
will be considered to be selling the goods," Justice Kagan cited.
"Does that provision cover the employees here?
And if so, "how does it work that we should understand sale one way for purposes of coverage and another way for purposes of exemption?
While the pharmaceutical reps would fall under the coverage provision, Stewart
responded, "the DOL
has historically regarded the kinds of promotional activities they perform "as distinct from selling the product."