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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6697
Experience:  Significant experience in all areas of employment law.
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My husband is a pest control technician. He applies pesticide

Customer Question

My husband is a pest control technician. He applies pesticide and uses various techniques to rid commercial accounts of their "pests." He was hired as an hourly employee in August 2012, earning 18.00 an hour. Then in October 2012 was told that he was on straight production as accounts had cancelled-not my husband's fault-just a corporate decision. He is not paid hourly anymore and isn't getting any overtime. He is not a salesperson, but is encouraged to try and get new accounts. Basically, he is assigned a pest control route and is paid what they call a "draw" on his production (the amount that he brings to the company based on the work that he does for what they bill out to these companies during the month) He has little control of this as the majority of his day is doing the manual labor. He is not in charge of anyone. His paycheck now shows a "draw" of $3000.00 every 2 weeks. We figure that it is basically his hourly pay of $18 an hour that he was hired on times 80 hours every 2 weeks. He has asked his boss at least twice verbally on 3-4 times on email to explain this. His boss is very evasive and just says that he is being paid on production and that he will try to get more accounts to my husband so his pay will go up. I am VERY confused and I don't think that he can legally do this in the state of CA. He has taken a LARGE drop in pay because of this. What do you think we should do?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about your husband's difficult employment situation.

It is not illegal for an employer to pay employees on a pure commission basis. However, unless the employee's job falls within one of the limited exemptions from overtime as prescribed by state and federal law, the employee must be paid overtime for all hours worked in excess of 8 per day or 40 per week. (The commission wages must also not fall below minimum wage when averaged out by the number of hours worked, though this doesn't apepar to be an issue for your husband.)

See here for a summary of potential exemptions from overtime: http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm Based on the facts you have described, the only potentially applicable exemption would be the "outside salesperson" exemption, which exempts from overtime employees who engage primarily in sales away from the employer's premises. However, you indicate that while your husband engages in sales, this is not his primary duty, and so this exemption is unlikely to apply.

If your husband is not exempt from overtime, he would be entitled to overtime for all hours in excess of 8 per day or 40 per week. Overtime would be at a rate of either 1.5 times his "regular rate" (the regular rate being his draw divided by 80 hours), or 2 times his regular rate, depending on how many hours in excess of 8 per day or 40 per week he actually worked. See here for more information: http://www.dir.ca.gov/dlse/faq_overtime.htm

If your husband's employer is not complying with these guidelines, an individual in your husband's circumstance would have a claim for unpaid wages which he could pursue through the Department of Labor Standards Enforcement. His employer would also be legally prohibited from retaliating against him for making such a claim. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes and happy holidays to you.
Patrick, Esq., Lawyer
Satisfied Customers: 6697
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Sales is not his primary duty. He shows up to commercial accounts such as Target, Wendy's, Starbucks, Trader Joes, El Pollo Loco, etc to apply pesticide and extermination techniques. So he should be paid for his OT. On Wednesdays, he works from 6a-2p then gets up and goes to work 1 hr 1/2 away in Los Banos. He works till about 7a and drives home. So he should get OT for that as well, right?

Expert:  Patrick, Esq. replied 1 year ago.

Thank you very much for your reply. Yes, it would seem that an individual in your husband's circumstance should be entitled to overtime on the basis of the facts described. He can pursue this claim through the DLSE using the link provided above.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

All the best to you and your husband in the new year!

Patrick, Esq., Lawyer
Satisfied Customers: 6697
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

My husband just got a direct deposit (paycheck stub is in the mail) for $1100.00! He actually had MORE production in December, but he did take Christmas Eve off, so it looks like they DID subtract hours, even though they say that they are paying on production.


 


I called the Labor Board in Fresno (before this latest paycheck today) and they said that is paycheck MUST show hours and how they arrived at the pay. They said to file either with the Labor Board or Bureau of Field Enforcement.


 


What is the difference an what do you advise us to file?


 


My husband doesn't want to file, but to try and talk to his boss AGAIN. I say to file. How long does it take to see results? Would he get back pay? Can they retaliate and fire him?


 


Thanks


 


We can't even pay the rent because of this

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very mcuh for your reply. I'm so sorry to hear about the worsening situation. Whoever you spoke to with the Labor Board is correct that your husband's employer must itemize the number of hours worked and how the specific pay amount was reached.

Generally, it is best to file a wage claim with your local Division of Labor Standards Enforcement Office. This is the "Labor Board." See here for more information, or use the link provided above: www.dir.ca.gov/dlse/howtofilewageclaim.htm

The DLSE states that they will respond to claims within 30 days. Most claims are responded to within 2-5 weeks. An individual in your husband's circumstance would stand to get back pay and his employer would be absolutely prohibited from retaliating against him for making the complaint.

All the best to you and your husband moving forward.
Customer: replied 1 year ago.

Thank you!


 

Expert:  Patrick, Esq. replied 1 year ago.
It was truly my pleasure to assist you.
Customer: replied 1 year ago.

I called the Labor Board District Office in Bakersfield. Carmen told me that pest control technicians don't get Overtime because of hazardous waste that they carry. I've never heard of this...


 


He has been a licensed technician since 2005. He worked for Orkin Pest Control. He was always paid OT.


 


I am so confused. Please help!

Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply.

The overtime exemption that this individual from the Labor Board seems to believe is applicable applies to "truck drivers" who transport "hazardous waste." Applicability of this provision would depend on whether your husband is aptly classified as a "driver" and whether the vehicle he is driving fits the definition of a "truck." Normally, this provision is intended to apply to 18 wheeler truckers hauling loads weighing thousands of pounds--not pest technicians.

Furthermore, even if an individual is exempt from overtime pursuant to this provision, federal will will still mandate that they are paid overtime for all hours worked in excess of 40 per day unless they are a truck driver the drives in "interstate commerce," meaning makes trips across state lines.

All in all, I find application of this overtime exemption to be extremely unlikely and stand by the information I provided above.

I hope this helps.
Customer: replied 1 year ago.

You are so wonderful! Thank you!!


 

Expert:  Patrick, Esq. replied 1 year ago.
My pleasure!
Customer: replied 1 year ago.

Hi!


 


I just spoke to a State of CA Labor Board representative. She researched the pest control pay situation and said that "legal" told her that their position is that Pest Control Technicians are exempt from overtime.


 


She cited case law Crooker vs. Sexton Motors and basically told me to go pound salt. What can we do now? Thanks!!

Expert:  Patrick, Esq. replied 1 year ago.

Thank you for your reply, good to hear from you again.

I searched the case name you were given and found this written opinion: http://openjurist.org/469/f2d/206/crooker-v-sexton-motors-inc Same party names, and it pertains to a dispute involving overtime for truck drivers, so I assume this is what the Labor Board rep was referencing.

With all due respect to that person, this case doesn't appear to bear any relevance to the situation. Not only is it a 1st Circuit opinion (federal appeals courts are broken into circuits by region), which would make it a persuasive rather than binding authority, it doesn't even appear to involve a pest tech at all. The court describes the primary duties of the plaintiff as "to clean and polish cars."

Making this even more irrelevant, if federal law as opposed to state law governs your husband's entitlement to overtime (remember, with truck drivers, overtime will be governed exclusively by either state or federal law, depending on the specific nature of the position--and this assumes that your husband even IS a "truck driver" according to the meaning of the law), the DLSE cannot even adjudicate the issue. They lack jurisdiction, as they can only enforce state law. So, the idea of the CA Labor Board citing a federal case makes little sense because it has nothing to do with the laws they can even enforce.

I have yet to be directed to any authority that would contradict what I have stated above. At this point, since you are essentially beign stonewalled by the DLSE, it would be wise to seek local legal representation and file an an action in civil court.

See here for referrals: http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

I wish you the best moving forward.

Customer: replied 1 year ago.

Is this AMAZING or what? OK, I'll talk to Mark and we'll proceed accordingly! Thank you so much for your support and help!!!!

Expert:  Patrick, Esq. replied 1 year ago.
It's my pleasure to assist. I truly wish you the very best.

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