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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37871
Experience:  Retired (mostly)
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I have a five hundred dollar a week salary plus a commission

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I have a five hundred dollar a week salary plus a commission percentage I make doing the sales for my company.
Over the last five years, my employer has never paid any over time when I worked 10-11 hours a day,(90 -100 hours for two weeks), but had no problem taking away money if I only worked 4-6 hours on a given day due to family, personal time off etc.
Example: on the 4 hour day only paying me $50.00 instead of $100., yet I worked many 8.5 hour days and even nine during the same week. They convert it to hourly when it fits their needs.
They are now trying to get me to stay home a few days to avoid paying me the $100 per day salary.
When I come in after a forced day off, I end up working nine hours, with out additional compensation.
They have also refused to pay commission on jobs that go over budget, even though I don't receive bonuses on the 100's of jobs that come in way under budget.
Is this legal?
Thank you,

Your question is deceptively difficult. There are two types of salaried employees (exempt and nonexempt). An exempt employee must receive a minimum monthly salary of $2,773.33 -- regardless of commissions.

So, you are clearly not an salary-exempt employee.

A nonexempt salary employee may be exempt from overtime if (1) the employee's total monthly earnings exceed one and one-half times the minimum wage, (2) more than half of that employee's compensation represents commissions, and (3) the commissions are earned in the mercentile industry (sales of goods, e.g., clothes, tools, building supplies, optical products, auto parts, cars, boats, appliances, etc.).

You may fall into this category. If yes, then your employer's actions are legal.

If neither of the above applies to you, then your employer's actions are illegal and you are entitled to be paid an hourly wage plus overtime, regardless of your salary. To file a wage claim withe the DLSE, see this link.

Note: wage claims can go back 3 years.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 5 years ago.


I appreciate your answer, but it does not really tell me anything.

Let me rephrase the question.

I am a salary plus commission employee. How can an employer pay me a salary when I work more than 8 hours on a given day, buy pay me as an hourly employee if I work less than 8 hours.

Either I am salary or hourly. I can't be both. CAN I ?


Also,I sell heating and air conditioning equipment with the installation. I asked about how an employer can take away commission on a job that goes over on my projected hours, but refuse to pay me more when the jobs come in way under budget. How can any employer be so unfair. Is this illegal or just immoral?

I plan to eventually quit this company, but need to know if I can recover any of the money that has been taken from me by hiring a lawyer.

For the jobs you sell, which produces more revenue, the equipment or the installation?
Customer: replied 5 years ago.

The job is sold as a contract job. It includes permits, equipment and labor.

Based on the company software, the labor produces more markup revenue, but there is no breakdown given to me for my records. They track both the materials used and the labor..



Based upon the labor being the majority of the cost, I believe you are not a commission employee, but rather a "piece/job worker," because none of the state or federal exemptions for commissions meet your definition. This means that each sale produces a payment to you, and after you add your base to that amount, you obtain a weekly amount, which when divided by 40 is termed the "regular rate," and which represents your hourly wage. It also means that you are entitled to overtime at your regular rate, exactly as if you were being paid by the hour without any variation in job rate.

So, the issue devolves to how many hours you work during any day after computing your regular rate, and then confirming that you are paid according to that schedule.


You work six days in a workweek -- hours as follows: 6 10 8 8 8 8. You earn $1,000 from your efforts, both base and job. Divide 1,000 by 40 gives $25 per hour. On day two you worked two hours of overtime, so you are entitled to an extra $12.50 for each of those two hours. On day 6 you worked 8 hours, so you are entitled to an extra $12.50 for each of those 8 hours. Your final pay would thus be $1,000 plus $125 in overtime.

My original answer shows you where to file a wage claim. The rest is up to you.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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