How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask socrateaser Your Own Question

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33907
Experience:  Retired (mostly)
10097515
Type Your California Employment Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

I have a five hundred dollar a week salary plus a commission

Resolved Question:

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,
Michael
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Hello,

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 3 years ago.

"ToCustomerquot;

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.

Expert:  socrateaser replied 3 years ago.
For the jobs you sell, which produces more revenue, the equipment or the installation?
Customer: replied 3 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..

thanks,

Michael

Expert:  socrateaser replied 3 years ago.
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.

Example:

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!


socrateaser, Lawyer
Satisfied Customers: 33907
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    849
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    330
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3443
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.