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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33898
Experience:  Retired (mostly)
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Hello, I am a massage therapist working for a resort in California.

Customer Question

Hello, I am a massage therapist working for a resort in California. They stopped paying us an hourly wage last season. I guess they found a loop hope not to pay us. So, I am making commission only. My immediate supervisor has made it so I am the only therapist giving other employees massages at a very reduced rate (much less commission). The other therapist do not have to give employee massages. Is this a form of harassment? What can I do about it. She also written me of (a written infraction) on things I have not done. Where do I go from here. I love what I do and where I do it.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

In order for you to be the object of harassment by your employer, you must be able to show that the employer's actions in making you the only employee who performs co-worker massage, is based upon a discriminatory motive: race, color, nationality, religion, sex, sexual orientation, pregnancy, age or disability.

If you cannot show a connection to one of the above-described classifications, then there is no harassment, and the employer is free to require that you perform an unreasonable share of the lower-paid massages.

For example, if you are male and all of the other massage therapists are female, then that would demonstrate a possible discriminatory motive. In which case, you could file a complaint with the Department of Fair Employment and Housing (DFEH), at this link.

I'm a bit concerned about the statement that you are full-time commission. The employer may be violating the wage and hour laws. If you would please describe a typical day's work, that could help me determine if there is something possibly unlawful taking place.

Thanks in advance and I hope this helps.
Customer: replied 1 year ago.

This is my forth season with Sugar Bowl. When I started we received a low hourly wage and a small commission. Last season 2011/2012 they did not pay any hourly wage and gave us a larger commission. They said it had to do with a legal term "per piece" like we are building an item.


 


Sugar Bowl was sued two seasons ago for not paying instructors during a mandatory line up (morning meeting)


 


I am sure I am the oldest person working at Sugar Bowl as a therapist however, I am not sure how to prove it.

Expert:  socrateaser replied 1 year ago.
Okay, well, you don't need to prove that you are the oldest person. You only need to complain to DFEH that you believe you are being discriminated based upon your age, and let the government investigate.

Setting that aside, here's the questions I need you to answer concerning your typical day's work:

1. How much time do you typically have between massage sessions?

2. Are you free to do whatever you wish when you are not performing a massage?

3. How quickly are you required to return to the spa, if you are called to perform a session?

Thanks in advance.
Customer: replied 1 year ago.

It can be a lot of time between appointments or it can be 5 minutes.


 


Yes, we are free to do what we would like between appointments.


 


They say they give us a two hour window however it is usually 30 minutes. Most client do not want to wait 2 hours.

Expert:  socrateaser replied 1 year ago.
If a guest were to come in for a massage, and they needed you to return immediately, but you were 30 minutes away from the facility, would your supervisor be angry that you were not immediately available?



Customer: replied 1 year ago.

Yes.

Expert:  socrateaser replied 1 year ago.

Okay, thanks.

On-call waiting time must be paid to employees, depending upon whether an employee is free to engage in personal activities. The factors that the U.S. Department of Labor considers are:

 

 

  • whether there was an on-premises living requirement;
  • whether there were excessive geographical restrictions on the employee's movements;
  • whether the frequency of calls was unduly restrictive;
  • whether a fixed time limit for response was unduly restrictive;
  • whether the on-call employee could easily trade on-call responsibilities;
  • whether use of a pager could ease the restrictions on the employee; and
  • whether the employee actually engaged in personal activities during call-in time.

 

 

The point here is that if you really can't go anywhere, because if you leave, you will lose the opportunity for the next appointment, then you are not really free to engage in personal activities and you are entitled to compensation, based upon your average hourly rate during the workweek. This means, for example, that if you were available 8 hours per day and 5 days per week, and you earned $500 commissions during that work week, then the employer would have to pay you $12.50 (500 divided by 40) for every hour that you're just sitting around waiting for the next job.

 

You can file a wage claim with the Division of Labor Standards Enforcement (DLSE). If the investigator decides you have a viable claim, then you will probably get your money, and the employer will have to change its compensation methods dramatically. And, if you are retaliated against for making the claim, then you would have a big lawsuit, because Cal. Labor Code 1102.5 treats you as a "whistleblower" once you file a complaint, even if the DLSE decides that the claim is invalid.

 

Hope this helps.

socrateaser, Lawyer
Satisfied Customers: 33898
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Expert:  socrateaser replied 1 year ago.
Hello again,

I hope you are well, and that my information has been useful to you. If there is something else that I can clarify for you, please feel free to ask. Otherwise, if you would kindly provide me with a positive rating, I would greatly appreciate it. Otherwise, I receive no compensation for my efforts.

Thanks again.
Customer: replied 1 year ago.

So, if I understand correctly. I should complain to the DFEH for harassment and file a claim with the Department of Labor regarding the commission only on-call service. I recently requested this information from payroll and I have been notified that I given my resignation but I did not and they sent me my last paycheck. Where do I go from here.


 


 

Expert:  socrateaser replied 1 year ago.
Harassment/discrimination = DFEH.

Wages/commissions/on call pay = DLSE.

If you were terminated under the guise of a claim that you resigned, then the question is, "why?" If the reason is because you complained to either DFEH or DLSE, then you would have a retaliation claim. Otherwise, not.

The employer can terminate you "at will:" at any time, for any reason, or for no reason at all -- unless you filed a complaint with DLSE or DFEH before you are terminated.

Assuming that you did not file a complaint before termination, then your recourse is to file an unemployment claim with EDD, in addition to a complaint with DFEH and/or DLSE. The complaints are all valid regardless of timing.

Hope this helps.

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