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bentrodgirl
04-16-2008, 12:16 PM
my husband is a automotive tech in southern california. with the economy being what it is currently, he is only making less then 40 paid hours for an 80 hour pay period as far as what he 'flags' commission. several techs are making far less then the hours they are acutally on the clock. his boss just brought him out a sheet to sign stating that 'the company' provides the tools and therefore his own tools are a luxury item and a) not insured and b)due to the provision of the tools somehow that expense excuses them from having to pay the techs minimum wage if their pay falls below a certain amount. i think they have to pay which ever amount would be greater, either the commission amount or minimum wage.

it has always been the case in this industry that techs provide their own tools and they are insured by the business that employs them. he has always had to provide a tool list plus pictures for previous employers.

anyhow...my question is actually concerning the minimum wage issue and rather or not he should have signed something stating that their providing tools is somehow a form of 'payment' that would alleviate them from paying minimum wage if that amount exceeds the techs 'flagged' hours?

and if he should not have does he have the right to request the paper back and refuse to sign it now or is it too late?

DAW
04-16-2008, 01:33 PM
The employer is trying to tap dance around the "facilities" provision in the federal 29 CFR 531.xxx reguations. The document the employer had the employee signed is related to the 29 CFR 531.530 rules. By looking at the federal regulations only, I can see the argument that the employer is trying to make, but I can also see the counter argument I would make in response. Since this is all old law, it means federal DOL has decided a long time how to slice this particular baloney. I do not know what they decided, and (no offense) do not feel like spending several hours researching this.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_531/Subpart_C.htm


I am going to recommend that you give CA-DLSE a call. CA has much tougher rules then the federal rules on this area, there is a much better chance that CA will find the employer's action illegal. Tell them that the employer is trying to use the FLSA "facilities" provision in 29 CFR 531.xxx to pay less then minimum wage.

http://www.dir.ca.gov/dlse/FAQ_MinimumWage.htm

CaLaborLawAttorney
04-16-2008, 03:11 PM
my husband is a automotive tech in southern california. with the economy being what it is currently, he is only making less then 40 paid hours for an 80 hour pay period as far as what he 'flags' commission. several techs are making far less then the hours they are acutally on the clock. his boss just brought him out a sheet to sign stating that 'the company' provides the tools and therefore his own tools are a luxury item and a) not insured and b)due to the provision of the tools somehow that expense excuses them from having to pay the techs minimum wage if their pay falls below a certain amount. i think they have to pay which ever amount would be greater, either the commission amount or minimum wage.

it has always been the case in this industry that techs provide their own tools and they are insured by the business that employs them. he has always had to provide a tool list plus pictures for previous employers.

anyhow...my question is actually concerning the minimum wage issue and rather or not he should have signed something stating that their providing tools is somehow a form of 'payment' that would alleviate them from paying minimum wage if that amount exceeds the techs 'flagged' hours?

and if he should not have does he have the right to request the paper back and refuse to sign it now or is it too late? He must be paid minimum wage for all hours worked as long as he is working at the company (versus selling something ie. door to door). He is entitled to overtime pay if he works more than 8 hours in a day OR 40 in a week so long as he is not paid 1.5 times min. wage and 1/2 of his money does not come from a bonafide commission structure.

this comment assumes only facts in this string.

Worriedspouse
04-17-2008, 11:29 PM
From the DLSE manual:

29.2.3.3 IWC Definition Of Hand Tools And Equipment Consistent With DLSE View.
In its Statement As To The Basis for the recently adopted wage orders, the IWC states
that the term hand tools and equipment is to be read narrowly and is limited to hand
(as opposed to power) tools and personal equipment, such as tool belts or tool boxes,
that are needed by the employee to secure those hand tools. Moreover, such hand tools
and equipment must be customarily required in a recognized trade or craft.

And:

45.5.7 Tools. When tools or equipment are required by the employer or are necessary to the
performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the
minimum wage provided herein may be required to provide and maintain hand tools
and equipment customarily required by the trade or craft. This subsection (B) shall not
apply to apprentices regularly indentured under the State Division of Apprenticeship
Standards.


45.5.8 Remedy. Failure of an employee to receive two times the minimum wage while still
obligated to purchase the tool would result in the employer being liable for the cost of
the tool or equipment under Labor Code 2802.


45.5.8.1 Definition Of Hand Tools And Equipment. DLSE has opined that the term
hand tools and equipment is to be given its literal meaning. Such hand held tools and
hand held equipment do not include power driven tools or equipment. The IWC
intended that the term be limited to hand held tools such as hammers or screw drivers.
The word equipment is meant to encompass hand held measuring instruments or like
apparatus. The IWC Statement As To The Basis of the 2000 Orders states: T his
exception is quite narrow and is limited to hand (as opposed to power) tools and
personal equipment, such as tool belts or tool boxes, that are needed by the employee
to secure those hand tools.

CaliforniaLaborLaw
04-18-2008, 05:31 AM
this was a helpful string..thanks Worried.

bentrodgirl
04-18-2008, 11:20 AM
thank you for that information.
what seems likely to me now after review, is that the company is trying to protect itself, not from having to pay techs, but from being liable themselves if the wages are lower then 2x minimum wage due to the recent lack of labor hours being flagged by the techs.
this makes it a whole different scenario that is simply the company doing what it legally has to in the current situation.
it is very sad to see that our economy has gotten bad enough that a dealership has to come to this point. i'm sure it was not a fun decision for them to come to terms with either.
again
thank you
(and sorry for the no caps, i don't use them when in forums or groups!):D

CaLaborLawAttorney
04-18-2008, 11:23 AM
my husband is a automotive tech in southern california. with the economy being what it is currently, he is only making less then 40 paid hours for an 80 hour pay period as far as what he 'flags' commission. several techs are making far less then the hours they are acutally on the clock. his boss just brought him out a sheet to sign stating that 'the company' provides the tools and therefore his own tools are a luxury item and a) not insured and b)due to the provision of the tools somehow that expense excuses them from having to pay the techs minimum wage if their pay falls below a certain amount. i think they have to pay which ever amount would be greater, either the commission amount or minimum wage.

it has always been the case in this industry that techs provide their own tools and they are insured by the business that employs them. he has always had to provide a tool list plus pictures for previous employers.

anyhow...my question is actually concerning the minimum wage issue and rather or not he should have signed something stating that their providing tools is somehow a form of 'payment' that would alleviate them from paying minimum wage if that amount exceeds the techs 'flagged' hours?

and if he should not have does he have the right to request the paper back and refuse to sign it now or is it too late? As the economy gets tougher we see many employers cutting corners, you are correct.

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