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drive time question California

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  • drive time question California

    i cant find any dedicated info on my question so if anyone can post me a link i can read that will help also. Im curious if this would be a type of retaliation like the other workers think since they went 5 years without being paid overtime til i asked HR about it.

    i have a california commission job (not outside sales, and i cant use my own vehicle since work van has the motor mount needed) and read that drive time is calculate hours, but is it calculated as hours used to make the commission or should be a separate billing type. just want to clarify the rules on it.

    I had a job that was a 2 hour drive from and back to the yard and before another employee was given regular commission and drive time for the job. when I had to do the job next i reported the commission and the same drive time and i was told not to do that. just wondering if that was fair or not. this happened after i reported to the HR manager that they have not been paying us OT, which they have corrected but since have been not paying the same as before for some jobs. the regular commission has been the same but now they dont like to pay drive time anymore.

  • #2
    What are your job duties? What is the industry? Those two questions are needed to verify your Exempt status. You are likely non-exempt but that would just be a guess thus far.

    Assuming that you are indeed non-exempt, the next question is the drive time question. Assuming that you drive your own car to the "office", change to a company vehicle and drive to a work site, do something and drive back, THAT drive time is hours worked, but the commute is not.

    If we are looking at statutory labor law only, then the employer must pay you CA MW (currently $8/hr) for all hours worked, but is NOT required to pay commissions. The pay agreement may create such a liability, but that is a "talk to an attorney" sort of issue.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      my duties basically require me to take a company vehicle with a motor mount for cleaning carpets and such, its a service type job.

      i drive to the company yard, switch to company vehicle, load up required tools, drive to job site. complete the job, drive back to yard, unload tools, drive to switch vehicles to go home.

      if there is nothing that would allow me to get drive time added, then i wont bother them. they already dont like me for pointing out the unpaid overtime for 5 years and have to redo all the employees payroll to fix it. i have only been there for 7 months.

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      • #4
        There is nothing external in the law that requires the employer to pay you both drive time in addition to commissions. There is something external in the law which would treat the type of drive time you mentioned as hours worked, and that hours worked are subject to minimum wage and overtime rules.

        Now unrelated to external statutory law requirements such as MW/OT, there is the possibility of an agreement between parties, subject to contract law or common law. That is the only way you would be due both travel time and commission.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          okay thank you for the info.

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          • #6
            IF you spend a lot of drive time of a company vehicle that adds up to a lot of paper OT and you get very modest commission such that your pay w commissions is less than just your hourly + OT you may want to get somebody more atuned to the issues to help you sort thru --not me --I'm lost--but I sense that with a lot of drive time the situation may become abusive

            I'm a bit confused as to if by paying you a token commission they are making you into an outside sales person?

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            • #7
              The job duties reported preclude the Outside Sales exception. For that exception to be applicable, the employee must spend 51%+ of their time at or visiting customer sites for the sole purpose of selling something. Cleaning carpets fails the Outside Sales exception.

              You however are making a good point that the OP is legally a non-exempt employee subject to the FLSA rules on hours worked, and for each workweek must be paid MW/OT. Commissions do not change this requirement.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment

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