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Laws for Commissioned workers? Florida

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  • Laws for Commissioned workers? Florida

    I am employed as a Dental Hygienist in the State of Florida. Have been with the same Company for 5 years. Compensation has changed numerous times over the past few years. I never did have any type of contract on paper. Any and all changes regarding compensations was done either by verbal or e-mail communications. Pay has been initially on a daily set base, changed to salary exempt from overtime to X% amount of daily production to presently X% of daily ADJUSTED GROSS PRODUCTION.

    My main question involves the law/legality of the Company's take on demanding me to stay on the premise regardless if there is scheduled production or not. We are required to stay on the premise at all office hours even if patients cancel.
    In our "down" time (sometimes hours!!!) we are required to help with all other task such as helping the other team members including administrative duties like calling patients, pulling charts or assisting the Dentist and Dental Assistants as needed, even though there is no monetary incentive for any Dental Hygienist involved. In other words I am working, doing the same thing as the Dental Assistant (cleaning, sterilization), the Dental Front Desk staff (confirming, chart review, audit, pulling charts) while they get paid and I'm not. No production, no pay!

    Another pressing question involves the right to demand off site meetings. The company has informed the Dental Hygienist of an upcoming meeting (Dental Hygienists only) which requires me to travel from the office to the meeting site (approx 1 hr drive). We are to clear our schedule to attend on time for a 2 hr meeting and work through lunch, meaning I will have to report to work on time (6:30 a.m.) see patients all day (until 2:30 p.m.) and travel 1 hr to be on time (3:30 p.m.) stay for the 2 hours meeting time until traveling back home (approx 1 1/2hrs drive).

    Compensations for that day is purely based on X% of production. No additional incentive for the meeting or travel, even though it is due to the Company's demand to shorten our productive work hours that we will not be able to meet our daily production goals. We were told this is mandatory and failure to attend will have consequences. Anybody who wants to be excused will have to submit a request subject to approval.(One of my fellow Hygienist has a 1 yr old baby to pick up from the baby sitter and was told that she could work all day instead and will be excused from attending the meeting.) Me, on the other hand, will have to attend because I am older and don't have any children to use as an excuse.(Discriminating????)

    Is there any protection/guidelines/law regarding commissioned workers that I can use as a reference when it comes to having to work and not getting paid?????

    Any feedback to set the record straight will be very much appreciated.

    Frustrated and feed up in Florida.

  • #2
    Just to be clear, are you being treated as an employee (taxes withheld from payments, W2 at year end) or are you being treated as an independent contractor (no taxes withheld from payments, 1099 at year end)?

    If you are an employee, and given what you describe as your job duties, then you are subject to minimum wage and overtime rules. All hours that the employer requires you to be on site are likely considered to be hours worked under federal law (FLSA). The only true "commission only" employees allowed under federal law are Outside Sales.
    http://www.dol.gov/whd/regs/compliance/whdfs22.pdf

    FL does not have a state Department of Labor (DOL). Meaning you are likely talking about a wage claim with federal DOL.

    If you are being treated as an independent contractor, it is very likely that treatment is legally incorrect, but it does complicate any solution (a lot).
    http://www.dol.gov/whd/regs/compliance/whdfs13.pdf
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      @DAW

      I guess I am a regular employee.. company takes out taxes every paycheck. If I take PTO I get paid a flat hourly rate X 8 hours for that day.

      Nobody knows how we are classified anymore... used to be told that we are OT exempt because of the job responsibilities involved for A Dental Hygienist. That was when we where still Salaried..

      I find your comment interesting regarding classification of a "true" commissioned worker.. I am definetely NOT involved in outside sales... working as a health care provider in one location.
      However, the Company considers us Commission workers as we are not getting paid anything BUT a % of the overall monthly production.
      At one time we were paid OT only to be told that it will be 1/2 of the regular hourly rate applied to PTO.

      Anyway, so basically I should get paid ( I suppose no more than minimum wage?) for the 2 hours of meeting time when I can't produce anything in the office? What about the time it takes to travel to the meeting site since it is outside of my regular work location?

      What about the issue of having to work all office hours even if there is no production? I assume as long as my overall pay equals at least minimum wage per hour worked they are operating within their legal limit. It seems funny that they can apply two or three different numbers when it comes to hourly compensation:
      PTO - Minimum of $31 per hr/X 8
      OT - 1/2 of PTO ($15.50) X hrs worked
      Non-productive hours - at least minimum wage X hrs worked.. (Never applies, since my Commission pay ALWAYS exceeds that rule) Go figure.. who in the world can follow that formular???

      Thank you for taking the time to respond.

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      • #4
        IF you were Exempt, it would be under the Professional exception. This is not based on job titles but rather actual job duties and education. Based on what you have said, I would say that you have failed both the duties and salary basis test associated with that exception. Meaning that you are non-exempt (subject to MW/OT rules).
        http://www.dol.gov/whd/regs/compliance/fairpay/main.htm

        Federal law (FLSA) does not look at all aspects of you being paid. It looks at MW/OT, period. Some states look harder. FL does not. If you talk to a local attorney and that attorney is willing to spend significant time talking to you about every possible aspect of your job, there is a small possibility that some other cause of action might be found. But that is way beyond what you can get addressed on a free Internet board. What we can address is the obvious stuff. You must be paid at least MW (average for all hours worked in the workweek). You must be paid at least OT (if applicable) on a workweek basis. This is hard federal law, applicable everywhere (including FL). If this law has been violated, file a wage claim with federal DOL. Your starting point is determining just what is hours worked. Which is why I cited that factsheet. If your employer controls your time, then it is likely hours worked. But READ the factsheet.

        The "apply OT time to PTO" is illegal on it's face.
        http://www.dol.gov/whd/regs/compliance/whdfs23.pdf

        Also PTO has nothing what-so-ever to do with federal law. Federal law is about hours worked, not PTO. The feds are fine with you never getting paid PTO for any reason. FL if anything cares less then the feds. FL does not even enforce what few laws it has.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          DAW,

          I appreciate your advice. I do understand that it is far more complex when it comes to all the different States. However, I can't help the feeling that something has been not quite up to par with recent developments regarding fair compensation.

          The "apply OT time to PTO" is illegal on it's face

          I used that quote only because whenever I get paid PTO they use a flat hourly rate which we are given as our "base" hourly pay and we were told that OT would be based on 1/2 of our base pay as an act of good will since Dental Hygienist in FL are considered "Professionals" due to the education and specific job responsibilities and therefore are held to the OT "exempt" standards...............( I thought you had to be Salaried to qualify).

          According to the FACT SHEET you provided for me to read OT should be configured 1/ 1/2 X the regular hourly rate..

          I guess where they get away with is that since we are paid on Commission (hours don't matter for Commision workers, right?) there is NO such thing as regular hourly rate...

          Sigh... getting to complicated... I have tried to find a Labor Law Lawyer to discuss these issues but so far haven't had any luck in finding somebody who can give definite answers.. too many gray areas....

          Got to love Florida.

          Comment


          • #6
            There is nothing wrong with paying you on a "commission" basis. Or a "sunspot" basis. HOWEVER, they must pay you at least MW/OT. "Commission" is not some magic word that makes MW/OT laws go away. If you are not being paid at least MW/OT, then file a wage claim. I cannot make it any more clear then that.

            PTO is legally nothing under federal law. The feds never, ever for any reason care about PTO. FL does not care about much of anything.

            Your employer is not just required to calculate OT with a 50% premium, but they are required to PAY you that money in a timely manner. Generally no more then a one pay period lag. "PTO" is not some magic phrase that makes the OT laws go away. Your employer is either paying you the entire OT due in a timely manner or they are not. There is no PTO exception. If the employer is not paying you OT in a timely manner, then file a wage claim.

            If you think you have other pay issues not covered by the federal FLSA law, see an attorney. There is other "law" then FLSA that may be in play. But federal DOL does not enforce that "law". Just FLSA. Just MW/OT claims.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Let me see if I can boil it down for you. Take one week's time sheet. Multiply the total hours worked by minimum wage. (If it's 50 hours, multiply 40 by minimum wage, and 10 hours by minimum wage x 1.5.) Then look at your paycheck for that week. Is the gross pay on your check larger, or smaller? Any week that it's smaller, you can file a wage claim. If it's larger, the feds don't care, and neither will a labor lawyer.

              They are treating you as exempt, but it sounds like you are non-exempt. You can push to change that misclassification with the Powers That Be. But if they are paying you for all of your hours at minimum wage or higher, they are already doing what the law requires.

              DAW often says here that the best cure to a bad boss may be a new boss. I would not waste any time on a labor lawyer. If you disagree with the compensation plan, spend that energy finding a new job.

              Good luck.

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