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Joseph
Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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If an employee is being paid both hourly and commission but

Resolved Question:

If an employee is being paid both hourly and commission but at separate times (I.e. commission from 9:30am to 1:30pm and hourly from 1:30pm to 5:30pm) how does that work? If you start a client at 1pm and you're on commission, yet it rolls over into hourly schedule, would that still be considered commission?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welocome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

To be clear, when the employee is on commission, the employee only receives money from commission; and when paid on an hourly basis receives nothing from commissions? Is the employee performing the same duties regardless?

Has this arrangement (especially the one regarding the commission structure) been put in writing and signed by the employee and employer?
Customer: replied 1 year ago.
Yes, when the employee is on commission the employee only receives commission; and yes when paid on hourly receives no commissions. It's a salon, so as far as doing hair, yes the same duties are applied; but as far as being mandated to be present during commission hours and cleaning duties in the salon, no the duties are not the same.

Yes, the agreement was put in writing and signed by employee, employer/business owner, and manager.
Expert:  Joseph replied 1 year ago.
My goal is to provide you with excellent service today.

Since an employee must be paid on either a commission basis or an hourly basis for all work that they perform, the employee would be entitled to commissions on all clients that the employee starts on prior to 1:30 that then cross over into the hourly time.

If not, the employee would essentially be required to work for the employer for free (for any time spent on clients the employee works on prior to 1:30 who finish after 1:30) by not receiving commissions or wages on clients whose appointments begin prior to 1:30 and end afterwards.

The employer may want to not pay the hourly wage for clients that the employee is finishing up on during the hourly wage time, and that arrangement could be worked out between employee and employer. (E.g., the employer could have the employee clock in hourly only after finished with his or her last client that was started prior to 1:30).

If such an agreement is made it would need to be added to the existing contingency agreement due to California Assembly Bill 1396, which requires all commission agreements to be put in writing and signed by employee and employer.

However, due to the requirement that the employee be paid on some basis, the employee is entitled to commissions on clients that are worked on prior to 1:30 and not finished on till after 1:30.

Since my goal is to provide you with the best service possible, please let me know if you have any follow up questions or need any additional information.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!

Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you

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Joseph
Joseph
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Extensive experience representing employees and management