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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27235
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I currently work in California for an automotive dealer. I

Customer Question

I currently work in California for an automotive dealer. I am in the service department where I work Monday - Friday from 7:30am -5:30pm everyday with a 1 hour lunch; 9 hour day 45 hour work week. I am given a draw/paycheck on the 15th and 30th of each month but paid monthly by commission (after the month closes). My draw is then deducted from my commission check each month. My hours are logged via computer each day, clock in and clock out. When I am on PTO, I am paid at my hourly rate.
So, here is my question.I have no been told that I need to work on Saturday's, however I don't know how I should be compensated for those additional hours. Do I get overtime pay? As, I don't get overtime now for the additional 5 hours I work each week. Does it matter whether I am an exempt or non-exepmt employee? Any information you can provide will be welcomed.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good afternoon Brandie,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

Whether one is classified as salary exempt in CA will determine whether they are entitled to overtime pay. Under CA law, overtime is due for any hours greater than 8 worked in a single day, and for all hours worked in excess of 40 in a week. If you work 9 hours a day, you should get 1 hour of overtime each day. Once you have worked the first 40 hours in the week---including the 1 hour a day overtime, all additional hours are overtime as well. The way this works out, if you work 9 hours a day, the first 4 days you would work 4 hours of overtime out of 36 hours worked. On day 5, only the first 4 hours are regular time, and the last 5 are overtime as well. This makes a total of 9 hours a week of overtime when you work the schedule you state.

If you work with your hands primarily, is highly unlikely that you can be considered exempt from overtime.

Here are the qualification factors for being considered salary exempt:

In the US, a majority of jobs held by the nation’s employees are governed by the Fair Labor Standards Act (FLSA). Jobs are divided, in terms of wages payable and overtime wage eligibility, by whether the jobs are deemed to be Salary Exempt, or Non-Exempt positions. Non-exempt employees are entitled to overtime pay, while Salary Exempt Employees are not.

For salaried employees involved in sales positions, overtime pay depends on whether they are considered primarily outside sales, or inside sales (working in the employer’s store). Employees with primarily Outside Sales positions are not entitled to overtime pay, while those with Inside Sales positions are.

The test to determine whether a salaried employee is exempt or non-exempt for most other jobs other than sales depends on several factors:

A. The amount of monthly salary,

B. How the salary is determined, and

C. The type of work done by the employee.

Under the majority of circumstances, to be considered exempt, an employee must be:

1. Paid a minimum of $455 per week----which works out to $23,600 per year;

2. They must be paid on a salary basis---meaning whether they work 40 hours a week or 20 hours a week they earn the same minimum salary; and

3. They perform job duties which are considered exempt.

In almost all circumstances, only white-collar jobs may be considered Salary-Exempt. Whereas, jobs such as manual labor, working with your hands constructing items or repairing things, and workers who perform work involving repetitive operations with their hands, physical skill and energy may not be classified as Salary-Exempt.

With the while-collar jobs, there are further restrictions on which ones may be considered Salary-Exempt, and there are further tests applied to those positions. The primary tests of these positions looks at whether the employee:

1. Supervises at least two employees and whose job is primarily supervisory/management related, and has the authority to make decisions on behalf of the employer such as hiring and firing of employees.

2. Acts in an Administrative capacity in a position that involved non-manual labor related to management and/or the general business operations of the employer and requires the use of independent judgment by the employee over important matters of the employer’s business.

3. The third test for Salary-Exempt positions looks at whether the position is one which requires an advanced college decree---generally considered to be a Master’s Degree or higher. This is known as the Learned Professional exception. This exception generally expects that the work performed by the employee will be primarily intellectual in nature and like the Administrative and Supervisory exceptions, involve the exercise of discretion and judgment by the employee.

The botXXXXX XXXXXne is that, under the FLSA, Salary-Exempt employees do not have rights to overtime pay---regardless of the hours worked. They are entitled to their salary and nothing more. They may even be required to punch in and out or otherwise account for the time they spend working for the employer. The employer may even demand the Salary-Exempt employee work regular overtime hours without any additional pay or benefits.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you share that with me.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

Customer: replied 1 year ago.

I am a service advisor, who is paid by commission. I have a guarenteed draw on the 15th and 30th of each month which is $1500. This amount ($3000) is then deducted from my monthly commmission check (month closes, receive check around the 5th of each month).


A service advisor handles the following: When you bring in your car for service, I write up your statement/repair report for the mechanics. My commission is based on service hours, customer pay, customer satification reports, selling of extended warranties, etc. My commission is calculated by either a flat amount (sale of extended warranty) or percentage of sales/service. I do not manage or supervise any of the mechanics. So, does this qualify me as Salary-Exempt?


I have never received overtime pay for my existing hours. I currently work 45 hours per week; if I work on Saturday's now my hours will obviously increase to either 50-55 hours per week.


 


Since, I am a commissioned employee not paid by the hour; am I entitled to OT pay or any type of compensation when I work on Saturday's? Can my employer make this mandatory for me to work these extra hours?

Expert:  LawTalk replied 1 year ago.

Hi Brandie,

As you don't supervise anyone, the only argument that the employer has to call you exempt is to argue that you act in an Administrative capacity in a position that involved non-manual labor related to management and/or the general business operations of the employer and requires the use of independent judgment by the employee over important matters of the employer’s business. But you are not truly an administrator, but rather an inside sales employee.

It appears that you are not exempt, based on your job description, and that you should be being paid overtime for your hours over 8 per day/40 per week.

Because you earn commission, and are not paid a straight hourly rate, the commission and draw both count toward your hourly rate of pay. So, under CA law, if your draw and commission always are greater than you would be paid if you were paid minimum wage and overtime on that wage based on the hours you work---then the overtime pay would be satisfied.

CA's minimum wage is $8.00 per hour. If you work 9 hours a day, 6 days a week---that would be a total of 18 hours of overtime each week out of 54 hours. Your monthly income would have to be $2,167.00 to avoid the employer being in trouble for not paying overtime.

In other words, despite the fact that you may not be exempt, so long as you are earning at least $2,167.00 per month, the employer can get away without paying any additional overtime---if you work no more than 54 hours per week.

Now, if you were guaranteed a minimum hourly wage---as opposed to being purely commission with a draw, then the issues would be different. For now, based on your $3,000 monthly draw, the employer is withing the law.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.



I wish you the best in 2013,

Doug

Customer: replied 1 year ago.

Just a couple more questions.


Can my work mandate that I work on Saturday's/extra hours? or should this be purely voluntary?


 


Is there any reason why they monitor my hours then? I have to clock in when I arrive, clock out for lunch and clock out at the end of the day.


 


And my final question to make sure I am getting this right:


 


My total take home compensation on the 15th and 30th is about $1200. Then my commission/bonus is usually about $2000 since they deduct my draw above. So, since my total monthly take home is around $4400 per month and despite the fact that I may not be exempt, my employer does not need to pay me additional overtime. Correct?? But what if I do work more than 54 hours per week?? Then What??

Expert:  LawTalk replied 1 year ago.
Good afternoon,

You asked:

Can my work mandate that I work on Saturday's/extra hours? or should this be purely voluntary? An employer can demand that an employee work as often as is needed by the employer. It is never purely voluntary by the employee to work overtime hours. It may be legally demanded.



Is there any reason why they monitor my hours then? I have to clock in when I arrive, clock out for lunch and clock out at the end of the day. I presume that they check each month to make sure that you are paid minimum wage based on the hours you work and the commissions you are paid. If there was a month that you earned commissions of only $1,000, but still worked those 54 hours a week, they would be legally obligated to pay you at least minimum wage, and the could not deduct for that out of your next month's commission.

 

 



And my final question to make sure I am getting this right:



My total take home compensation on the 15th and 30th is about $1200. Then my commission/bonus is usually about $2000 since they deduct my draw above. So, since my total monthly take home is around $4400 per month and despite the fact that I may not be exempt, my employer does not need to pay me additional overtime. Correct?? This is correct. But what if I do work more than 54 hours per week?? Then What??


The can demand that you work 70 hours a week, and even with the overtime hours, you would still earn at least minimum wage. Yes, at some point you would get to the point where you were working more minimum wage hours than would be covered by what you earn. But that number would probably be in the range of 100 hours a week.

 

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

LawTalk, Attorney
Satisfied Customers: 27235
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Brandie. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10). It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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