Hi,

I recently took a (rather low-end) position with a business where my job is to drive around to clients' homes and provide them with sessions that last approximately 30 minutes each.

(I don't know if these details are relevant but just in case, I am to first arrive at the business office, and from there I take a company car to drive to the sessions. Gas is paid for by company.)

Here is my problem: I am in a large metropolitan area and our clients are spread out all over the city. Driving around to them takes huge amounts of time that can really add up. I did not find out until I had started the job and was in my first day of training that I will not actually be getting paid by the hour, but rather, by session. I suppose ideally things should work out so that driving time + session works out to roughly one session per hour, but this is not often the case. For instance, on that very first day, I worked seven hours to complete five sessions. (none of the sessions lasted more than their allotted 30 minutes). This would mean that I would only receive five "hours" worth of pay when in reality I worked seven. I am particularly frustrated because I feel like I was intentionally mislead. The ad I responded to in order to obtain the job used the wording "training starts at X dollars per hour..." and I reasonably assumed that payment would continue on a per hour basis as there was no indication to the contrary. Also, to my knowledge, there was nothing referring to this strange system of "per session" payment in any of the paperwork that I signed.

The time that I spend in the car is time spent working for the company, and I don't want to spend the majority of my days schlepping through traffic and not getting compensated for it.

I'm pretty sure I'm getting screwed over here; now I just want to know if I'm actually getting legally screwed over or if perhaps this type of compensation system is totally valid and I was just unaware of it.

Thanks for any advice you can give me!

Several questions:
- Are you otherwise being treated like an employee? W-4 completed, taxes being withheld from the check, W-2 at year end?
- If so, ignoring the commutes to/from your house, are you being paid on aggregate at least minimum wage for all other hours worked including driving time?

Thanks for replying so fast. Let's see, I guess the answer to your first question would be yes.

I'm not sure about the second question. It would probably be yes sometimes and no others. But take that first day, for example, where I completed five sessions in seven hours time. Well I have started out at a whopping $8 per hour (read: session) so in that particular instance, I would have actually received $40 for the five sessions that day. If I were to calculate how much that actually worked out to per hour over the entire time worked, it would come out to something like 5.71, which is a fraction below minimum wage if I'm correct. :(

I have not read any of the paper work that you have either signed or that your company has published has part of their policies. This paper work can in part change the situation, or at least give your employer cover to argue accordingly. What is constant is that unless your employer can support a specific FLSA exception to the contrary, on aggregate over the work week, you must be paid at least minimum wage and overtime. That is currently $5.85/hr for federal and also Texas. Depending on the exactly wording of the documents that I have not read, it could arguably be higher, but it is not legally possible for it to be any lower.

You need to figure out what your company's workweek. List all hours worked (which does not include the commute to/from your house) but which should include trips between clients. Do two calculations. One is hours worked @ minimum wage. The other is a piece work calculation (visits times your fee/visit rate). Unless your employer can support an FLSA exception, they are required to pay the higher of the two rates.

Regarding FLSA exceptions, there are a lot of industry specific exceptions. You can get a fairly complete list at the following.

Federal DOL fact sheets (http://www.dol.gov/esa/fact-sheets-index.htm)

Travel that is all in a day's work (http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/29CFR785.38.htm)

that's all helpful information-- thanks very much.