Greetings everyone,

I am new here and trying to find some answers. I am an auto body damage appraiser (estimator) at a body shop belonging to an automobile dealer. My employer says that my position is exempt from overtime laws because the position is considered sales. There are special exemptions for salesmen, partsmen and mechanics and I understand that. I am paid a salary plus commission. My commission has NEVER been more than 50% of my pay. I work approx. 50 hours per week. I have been able to find case law regarding the same position outside of a dealership but none regarding my exact circumstances. People who work for insurance companies doing exactly the same thing have been found to be non-exempt. I have been told by two people at the DOL that my position is not sales and is not exempt from overtime but the company attorney says the DOL is wrong. I do not want to quit or be fired from my job over this issue. I only want whatever pay is legally mine.

Thanks for your help in advance! :D

You can always file a complaint with your state or Federal Dept. of Labor. They will investigate and make a decision. BTW, the Sales Exemption is for outside sales only. Maybe you want to bring this to your employer's attention.

The employee must be customarily and regularly engaged away from the employer’s place or places of business.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17f_outsidesales.htm

Oh, and btw, if you are fired for reporting a violation of law to the appropriate governmental agency, you also could have a case for wrongful termination.

Good luck.

Thanks Patty. Actually salesmen/women in automobile dealerships are exempt from overtime. It doesn't have to be outside sales, only when talking about a dealership. The disagreement we are having is regarding my position as estimator being sales or not. I believe it is not. I assess damages to a vehicle and give the customer a written report of the cost to repair including parts and labor using standardized computerized programs. It is up to them (or their insurance company) whether or not to repair at our shop. My commission is paid on labor sales only, not on parts. My employer's attorney states that the position of estimator is considered the same as a service advisor according to the NADA (National Automobile Dealers Association). Service advisors at our dealership are exempt from overtime although I believe that is because their pay is more than 50% commission, not simply because they are service advisors. Again, my commission is not more than 50% of my pay. As I said in my first post, I have spoken with the US DOL on the phone and they have told me that my position is indeed non-exempt, contrary to my employer's attorney. I have hesitated to file a complaint to have the matter investigated because as the man at the DOL told me, even though it is illegal to discharge me for filing a complaint, usually employers have a way of making your life at your job so miserable that you will quit. I have worked for this company for 9 years, I love my job and my co-workers and do not want to be made miserable. I'm really looking for some concrete proof that I am correct so that I can prove it to my employer and be done with this and move on. I just can't believe that I could be the first and only person this has ever happened to. I have searched and searched the internet and cannot find one single reference to a case involving an estimator at a dealership body shop. :( Are there any sites on the internet that you can suggest that I look?

Thanks again!