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  • Commission Only

    I work for a real estate appraisal firm in the state of Wisconsin. I am one of three licensed appraisers. I receive a percentage of the invoiced amount for each appraisal I complete. I am paid only when invoices for appraisals are paid to the company. Therefore, if the company is not paid for an invoice for any reason, I receive no compensation. I am treated as an employee for tax purposes, not an independent contractor. There are weeks, many in fact when I receive much less than what would contrue minimum wage for the week or no paycheck at all.
    I am not required to work set hours, simply to complete my assignments as scheduled. I am under a no-compete contract, that specifically forbids me to work within a 75 mile radius of the company for two years should I leave for any reason. Still, there are weeks when I get no assignments at all. Is this wage set up legal?

  • #2
    Commission Only Plans

    Are you an employee? Or, did you receive something from the company which states that you are an "independent contractor"? As an independent contractor, you would not be treated as an employee, with a minimum wage, etc.

    There are "tests" to determine if someone is an independent contractor or an employee. There are tests by the US Department of Labor (DOL) for purposes of determining if minimum wage needs to be paid, the IRS and the NLRB.

    For example, the DOL tests includes factors such as:

    1) Who exercises control over the manner in which the work is to be performed? In the case of an Appraiser, chances are that you determine the manner of work.
    2) What is each party's opportunity for profit or loss according to the managerial skill of the worker? As an independent Appraiser, you probably have an opportunity for loss if you do not do well with an appraisal. If you do well, you may be in the situation where people can request you or refer business to you. You have the opportunity of profit or loss.
    3) Who has made what type of investment in materials or equipment? My guess is that you use your own car, etc., when making an appraisal.
    4) Does the service or work require a special skill? I'm sure that your appraisal skills was learned only after training and/or experience.
    5) What type of degree of permanance is the working relationship? In other words, does the company have an obligation to call you to do an appraisal on a regular basis? Can they just stop calling you?
    6) Is the worker's service an integral part of the business? If you are an appraiser attached to an office that performs other services, such as a bank, a real estate office, etc., then you may be considered as part of the business, but perhaps not the primary reason for existence of the business.

    Non-competes can cause a person to be considered an employee, because, theoretically, the person is totally dependent upon the company for a livelihood. On the other hand, if you are permitted to do appraisals freelance, but just not for a direct competitor, perhaps you aren't an employee.

    You may wish to talk with a local Wage and Hour office to get additional information. The DOL Wage and Hour office closest to you can be found in your local telephone directory, under the US government section.

    Let me know if you have other questions.
    Lillian Connell

    Forum Moderator
    www.laborlawtalk.com

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    • #3
      Automotive sales, commission sales, being paid LESS than agreed percentage

      I work for a automotive dealer in Illinois as a salesman, making commission on all sales. I sold a car that made $21,000 in gross profit. The signed pay plan states that I receive 35% on all cars sold. I receive less than 15%. They stated that there was a capp. on commissions, NTE $3000. I was paid $3000., not the 35% $7350. I should have received. Is there anything I can do ? We didn't sign anything stating this capp. How long, (in months) do I have to put in a claim to the DOL ? Any feed-back or information will be greatly appreciated. Thanks

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      • #4
        Have you asked your employer where the policy exists?
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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        • #5
          Hi Elli, thanks for the reply.
          They said, "thats the way we always have done it". I told them it's not spelled out in the pay plan. "well, thats what the owned decided.
          Thanks

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          • #6
            duplicate post. This OP already started a separate thread.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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