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Exempt/Non-Exempt?? HELP

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  • Exempt/Non-Exempt?? HELP

    I have been trying to find an answer to the exempt/non-exempt in regards to my situation.

    I am a salaried employee, in a Sales position at a Recreational Vehicle store.

    I am AT work a minimum of 47 hours per week, unless we have a sale then I am At the store 53-58 hours and required to work a 6 day work week (this is once a month) when the normal week is only 5. and we are told that we get NO Extra pay or day off even though we work and extra day that week. also if we are not in attendance at the store for our 5 days, they will dock our salary AND our commissions.... I am having a hard time believing all of this is legal.

    They also pay us a Draw for our commissions, but will not cut us a commission check until our commissions are over enough to cover 3 months of our draw, and we can NOT take that moneys out until the end of the year.

    Also if for some reason at the end of the year you are in the negative on your draw, they carry it over into your next year. So you start your year off negative in a new tax year...

  • #2
    You might research "BELO Plan" which is the only legal salary for non-exempts where OT is agreed as part of the salary: http://www.payroll-taxes.com/articles/belo-plans.

    It could also possibly fall under Section 7(i) which is here: https://www.dol.gov/whd/regs/compliance/whdfs20.pdf

    Sales is usually NOT exempt from OT unless it is Outside Sales (which means away from the property, not inside/outside on the lot). But the FLSA (federal) does have a specific document for car/truck/auto sales that might apply and you might read through: https://www.dol.gov/whd/regs/compliance/whdfs11.pdf It does have a phone number at the end for specific questions. I have no idea if RV sales falls under that exemption.

    So unfortunately there could be explanations on the how and the why.

    As to the draw, it is my understanding that anything negative can carryover and be required to be paid back. You might download this: https://www.michigan.gov/documents/l...e_466229_7.pdf and search for the Commission section (Draw against commission) -- there are quite a few paragraphs that might help you out.

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    • #3
      Reverse the issue. Federal law (FLSA) has two basic requirements.
      - Pay federal minimum wage of $7.25/hr.
      - Pay overtime for hours worked past 40 in the workweek.

      There are a very few exceptions to the minimum wage requirements, none of which are likely applicable. There are something like 100 overtime exceptions, the two most likely of which have been mentioned.

      Your state may or may not have more favorable rules. Your state is not my state and I do not know your state/s rules.

      Talk to your employer. Be polite and non-confrontational. A requirement for both the Belo Plan and 7(I) exceptions is that the employer TELL THE EMPLOYEE WHAT THEY ARE DOING. You do not have to tell them what they are doing. They are legally required to tell you why they are not following the normal rules. And remember there are a ton of legal exceptions.

      https://www.dol.gov/whd/opinion/FLSA..._03NA_FLSA.htm

      https://www.dol.gov/whd/regs/compliance/whdfs20.pdf
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

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      • #4
        Thank you

        Thank you for answering and giving me a place to be able look into the specifics of my situation. Thank you

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        • #5
          The key thing is the "hours-past-40-in-a-week" is the federal overtime default, but there are a ton of legal exceptions. The one thing all the federal exceptions have is the employers legal requirement to tell the employee which exception (if any) is being used. And the overtime rules do not so much go away but rather change to a different set rules.

          Your state's rules are whatever they are.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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