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Commission Wages vs. Meal Breaks & benefits California

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  • #16
    Breakdown of wages

    Here is the breakdown of everything (I have calculated all hours).

    Start date: July 1st, 2009. End date: December 31st, 2009

    Draw per month = $5,000
    Ending on December 31st, 2009: total draw paid to me is $29,346.15 (negative draw)
    # of weeks worked = 27 weeks
    # of meal breaks not accounted for= 135
    # of rest periods (2/day) not accounted for= 270
    # of remaining PTO days= 3
    # of overtime hours= 151
    # of total regular hours worked = 1,215


    I am also in San Francisco where minimum wage is $9.79/hour.

    Totals would be:

    Overtime: 151 hours @ $14.69/hour = $2,217
    Rest periods: 270 hours @ $9.79/hour= $2,643
    Mealbreaks: 135 hours @9.79/hour = $1,322
    Total Minimum wage earnings (27 weeks @ 40 hours/week) = $10,573.20
    Total: $16,755.20
    Last edited by wcadesign; 12-17-2009, 12:38 PM.

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    • #17
      Also.... those are the "numbers" game. The reality is, whether they paid me or not, they still had me working through every single one of my breaks and rest periods, over the past 6 months. That seems quite unfair to me.

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      • #18
        Not only unfair but illegal. You must be given meal and rest breaks. Are you being paid overtime? I understand that you are in "sales." What does your company do? and what is it that you're selling?

        Additionally your PTO cannot be forfeited by law.
        "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

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        • #19
          Because I am on a fixed "draw" every paycheck, I am not paid additional for any overtime. I am considered a "full commission" employee. I am supposed to make sales in order to pay back the draw and make additional bonuses. However, given the economic state, sales have been extremely low.

          I am not in outside sales because I am in our showroom 40+hours every week, trying to make sales here, running the showroom, cleaning the space, answering the phones, etc. I have done above and beyond my position and am tired of being pushed around by my company.

          I am in the business of cabinetry.

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          • #20
            I agree you are not an outside salesperson, however in two wage orders there is an overtime exemption for so-called "inside salespersons." I'm trying to determine if you are covered by one of those two wage orders. Is your business a manufacturer of the cabinets?
            "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

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            • #21
              My place of work is a showroom and a retail space for the company. We manufacture our cabinets in West Virginia, but our company owns that factory.
              Last edited by wcadesign; 12-17-2009, 02:45 PM.

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              • #22
                OK.I'm not sure I can conclusively determine which wage order covers your employment. There are two types of wage orders, an industry order, and an occupational order. Basically, if you are covered by an industry order that would trump any possible coverage by an occupational order. If you are not covered by an industry order, than you are covered by whichever occupational order fits your job. Two wage orders provide an inside sales overtime exemption, wage order #4, #7. Take a look here:http://www.dir.ca.gov/dlse/WhichIWCO...ifications.PDF

                Additionally, to meet inside sales exemption your earnings must be at least 1.5 times minimum wage and more than half of those earnings must be from commissions. Earnings considered commissions must be derived from from selling a product or service (not performing it) and must be based on a percentage of the purchase price.

                If you don't meet the aforementioned conditions then your "commissioned" earnings are going to probably be treated more like a piece-rate plan. As such, you must receive at least minimum wage for all hours worked and any OT at the applicable rate.

                Now to address the whole "draw" issue, this is probably a very bad business practice on the part of your employer. I presume this "draw" is paid before the wages are actually earned and that they now want to dock you for not repaying the "draw" with your performance. California law forbids employers from practicing self-help to employees wages, and as such they cannot simply skip paying you because you failed to make enough sales in the prior pay period. Now they may be able to sue and recover the unearned wages, but I'm not too sure so I won't speculate on that any further. This is why paying anything other than a fixed salary ahead of time is a bad idea. It will get old pretty quick having to sue an employee every pay period for overpaid wages.
                "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

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                • #23
                  I am considered a FULL COMMISSION employee, but receive a draw every month. There have been NO sales so therefore, my wages cannot possibly make up for 50% of the commission. No commissions have been earned. My company has made it clear that the money that they pay out in advance is not expected to be paid back to them, at any time. Should I leave, there is no contract or no payback to the "draw" paid out.

                  My current draw is above and beyond minimum wage requirements in San Francisco.

                  The bottom line is, I will be leaving this company at the end of this year and wish to file a claim against them to collect on all overtime and meals/rest periods. Is this a feasible claim? I spoke to an attorney and she agrees it is. No matter what they've paid out to me, the fact is, every break I've ever taken in the past 6 months have not relieved me of my duties 100%. My question is, do I receive these wages at the SF Minimum wage rate OR based on my previous "draw salary?"

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                  • #24
                    Did that attorney agree to take your case? I would continue to work with that attorney if I was you. A court action can normally offer much more than a DLSE wage claim can. I'm not quite sure I understand the whole draw thing. Is it a salary in addition to your commissions? That aside, the bottom line is this: you need to be paid for every hour you work including overtime. Meal and rest period violations are paid at one additional hour at your regular rate of pay or 1/40 of your weekly salary for each violation. The maximum premium wage is one hour for missed meal periods and one hour for missed rest periods per day, regardless of the number of violations in that day. I hope that helps. Write back with anymore questions.
                    "The most patriotic people in America are the working class" - Cecil Roberts - President UMWA

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                    • #25
                      What I'm trying to get you to is the calculation by workweek (for overtime purposes), not in total. But if you have an attorney, you don't need our advice any longer.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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