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Commission Wages vs. Meal Breaks & benefits California

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  • Commission Wages vs. Meal Breaks & benefits California

    I have been with my company for the past four months and am the only individual working in their San Francisco office. I was re-hired (the company had closed it's doors three months prior) on a commission only draw of $60,000. I have been paid bi-monthly and on time. However, several times the company has threatened to stop paying me all together. I have just received an email from HR explaining to me that in 2010, they will be reducing my draw to MINIMUM wage and requiring me to file time sheets every week.

    In the four months, I have had to work events (beyond my 40 hours) as well as do duties beyond my job description (ie. clean the showroom, garbage removal, receptionist duties, etc). There is no one to regulate my meal breaks and the corporate office expects me to be in the office at all times.

    I am in a negative draw balance and wondering if I will be able to file a claim against the company for the following:
    -not allowing meal breaks
    -PTO days that are unused for 2009
    -threats to remove my salary all together

    I am looking for some good advice!

  • #2
    You say you are the only person "in the office". Do you meet the crtieria for an outside salesperson?
    http://www.dir.ca.gov/IWC/IWCArticle4.pdf
    Unless you do meet that criteria, you cannot be paid "commission only" without taking into consideration hours worked.

    I think you mean "semi-monthly", not "bi-monthly" (which would mean once every two months), but let's move on.

    If you were to make a reasonable estimate, how much of your time in a representative workweek would you say that you are doing receptionist work, setting up for events, cleaning, etc.?

    And just to be clear, you are in California, right? (because you posted this in the Colorado forum)

    We'll get back to your actual questions once you provide the answers to the above.
    Last edited by Pattymd; 12-16-2009, 10:46 AM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Thanks for the quick reply! I do not meet the criteria for an "outside sales person." I am in the office 40+ hours a week.

      You are correct- semi-monthly I am paid by the company.

      Woops! I thought I posted this in the California Labor Laws forum... I will have to correct that!

      I would say that I am doing on average, 20 hours a week of other work, besides sales/design (which is why I was hired).

      Comment


      • #4
        Commission Wages vs. Meal Breaks & benefits California

        I have been with my company for the past four months and am the only individual working in their San Francisco office. I was re-hired (the company had closed it's doors three months prior) on a commission only draw of $60,000. I have been paid semi-monthly and on time. However, several times the company has threatened to stop paying me all together. I have just received an email from HR explaining to me that in 2010, they will be reducing my draw to MINIMUM wage and requiring me to file time sheets every week.

        In the four months, I have had to work events (beyond my 40 hours) as well as do duties beyond my job description (ie. clean the showroom, garbage removal, receptionist duties, etc). There is no one to regulate my meal breaks and the corporate office expects me to be in the office at all times. I do not meet the criteria to be considered an "outside salesperson" as I am in the office every week for 40+ hours. 20+ hours/week are spent doing things that are not related to my position (design/sales).

        I am in a negative draw balance and wondering if I will be able to file a claim against the company for the following:
        -not allowing meal breaks
        -PTO days that are unused for 2009
        -threats to remove my salary all together

        I am looking for some good advice!

        Comment


        • #5
          Also, California State and Federal Labor Law Posters are not and never have been in our office.

          Comment


          • #6
            That's OK, maybe one of the moderators can move your other post from the Colorado forum, because responses have already started there.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              OK, then I'm voting for nonexempt, which means you must be paid minimum wage for all hours worked, and overtime pay as required, and those must be paid "free and clear" without deductions for "negative draw".
              http://www.dir.ca.gov/dlse/FAQ_MinimumWage.htm
              http://www.dir.ca.gov/dlse/FAQ_Overtime.htm

              Breaks as well as meal period requirements apply. There are some exceptions for one-person work locations, but if you work through the meal period, you must be paid for that time.
              http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm
              http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm (see specifically the second paragraph regarding an "on duty" meal period)
              Also note the "additional hour's pay" requirement for failure to provide either.

              If I were an employer violating said labor laws, I wouldn't put up the posters either. The employer may receive a slap on the hand or a small fine.

              I would recommend contacting the DLSE regarding a wage and hour claim for all of the above. Their opinion is all that matters when push comes to shove, anyway.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

              Comment


              • #8
                Moving thread from Colorado forum.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  moving to thread started in Ca. forum
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                  Comment


                  • #10
                    Being if I go the non-exempt route, am I collecting funds for beyond what I received in pay?

                    For example purposes, let's say my negative balance is $10,000. I have received $30,000 in draw salary. If I quit and leave the company, do I have the right to collect funds for:
                    -meal breaks
                    -time & half
                    -rest periods
                    -minimum wage as a non-exempt employee

                    OR would the company claim that would just count against my negative balance?

                    Comment


                    • #11
                      Let me cogitate on that for a while. I'll get back to you in the morning if DAW doesn't respond. He's our main CA expert.

                      Oh do you have records of all your hours worked?
                      Last edited by Pattymd; 12-16-2009, 02:32 PM.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                      Comment


                      • #12
                        I suspect that the revision in your pay structure is the result of the employer discovering that you don't qualify for the outside sales exemption. If that is the case, you must be paid at least minimum wage for all hours worked. On the commission front, California requires that "commission" compensation must be based on the sales price, not profit, of the goods and or services sold. There is an overtime exemption for retail establishment sales people who are paid at least 1.5 times minimum wage when more than half of the compensation comes from a bona fide commission plan.

                        On the meal break side, if the employer requires you to remain on site, you must be paid for that time. If you are not relieved of all duties for a meal period, the employer owes you one hours pay at your "regular rate" of pay. There are exceptions to that but there must be objective criteria for an on-duty meal period. Being the only person at the location is not, in and of itself, justified for an on duty meal period. You are also entitled to 2 ten minute rest periods for an 8 hour shift. You must also be relieved of all duties for those rest periods. If you are not provided with those rest periods, you are entitled to another hours pay at your regular rate.

                        Regular rate of pay in a commission situation entails all compensation received divided by the total hours worked for the pay period. I can't say how your previous level of compensation would be considered when looking at a non- exempt or exempt inside sales position. Probably the best course would be to contact your local Division of Labor Standards Enforcement office. Explain the situation in simple and accurate terms. They will inform you as to whether you may have a case against your employer for back wages.

                        Comment


                        • #13
                          What I would do is recalculate hours worked, on a workweek basis, at minimum wage of $8.00 plus overtime as applicable. Then compare that to the salary (draw, whatever they want to call it) you have already received and see where you stand. Then get back to us.
                          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                          Comment


                          • #14
                            Shouldn't it be based on "Regular rate of pay in a commission situation entails all compensation received divided by the total hours worked for the pay period." ?

                            Comment


                            • #15
                              Originally posted by wcadesign View Post
                              Shouldn't it be based on "Regular rate of pay in a commission situation entails all compensation received divided by the total hours worked for the pay period." ?
                              I want to see where you stand as far as what is minimally required under the law. That would be minimum wage and overtime ONLY.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                              Comment

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