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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6740
Experience:  Significant experience in all areas of employment law.
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I am a hairstylist at a commission split salon. My employer

Resolved Question:

I am a hairstylist at a commission split salon. My employer is running a groupon campaign, and forces me to deliver services to groupon clients for 0% commission return. I have had to pay additional monies in child care costs because groupon services have kept me at work for longer than my shift, therefore leaving me in the negative just to go to work. Is this legal?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 10 months ago.
Good evening and thank you for entrusting me to answer your question. I am very sorry to hear about the effect this Groupon campaign is having on your ability to earn money at your salon. It's understandably quite frustrating.

In order to answer your question, I think I need a little bit more information.

Are you classified as a contractor or employee? Is your employer paying you minimum wage if your commissions don't equal minimum wage for the pay period? Laslty, is your employer reimbursing you for the expenses you incur in performing your job?

I very much look forward to helping you on this matter.
Customer: replied 10 months ago.
Thank you so much for your swift response. This situation is becoming increasingly frustrating, I appreciate your consideration. In response to your questions:
1. I am classified as an employee.
2. My employer does pay minimum wage if my commissions do not equal minimum wage for the pay period.
3. My employer does not reimburse me for expenses I have incurred while performing my job.

Thanks again,
Andrea
Expert:  Patrick, Esq. replied 10 months ago.
Andrea,

Thank you very much for clarifying these points for me.

It may surprise you to learn that an employer's only statutory obligation when it comes to paying its employees is to comply with the laws governing minimum wage and overtime. This means that your employer can force you to perform "commissionable work" for free, provided you receive minimum wage or more for all hours during which you are under your employer's control.

The law regards these "unpaid duties" as part of the package of employment, and provided the employee is clear that are not going to be receiving commissions for particular customers, the employer has no legal obligation to pay them.

Take some small comfort in knowing that, as an employment law attorney who assists individuals like yourself on a daily basis, I find the law in this respect to be tremendously unfair. I also empathize with your frustration.

The good news is that Labor Code 2802 requires employers to reimburse employees for ALL expenses necessarily incurred in the discharge of their duties. That means that any money you spend on supplies, marketing, or anything else MUST be repaid by your employer. If they are not doing this, then they are breaking the law. You can file a claim with the Department of Labor Standards Enforcement to enforce your right to reimbursement and can get that process started here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Employers are legally prohibited from retaliating against employees for asserting their rights under the Labor Code, so any adverse employment action taken against you as a consequence of your complaint would give rise to an entirely separate claim for damages.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver what is partially bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 10 months ago.
Thank you for the information you've provided. I suppose I am curious to the meaning of your response, so I am going to explain how I understood it in hopes you can grant me some clarification.

When I accepted my position I signed a contract stating that my employer would provide me with that commission percentage for my services, and have never received anything in writing saying I was not eligible for commission on these services.

Your response indicates to me that the law states that an employer is only legally required to pay at least minimum wage for the hours worked by an employee, for example: If an employee signs a contract stating they are accepting a position at $16.00/hour but the employer decides only to pay them minimum wage, the employee is not protected by law?
Is this correct?
Expert:  Patrick, Esq. replied 10 months ago.
Andrea,

Thank you again for your reply and for giving me the opportunity to clarify.

Above, I stated that an emloyers only "statutory" obligation is to pay minimum wage and applicable overtime. Forgive me for not being more clear about that. Statutory obligations refer to obligations imposed by the Labor Code, regardless of what the parties' employment contract may provide. Contractual obligations would be in addition to any statutory obligations that may apply and have equal force and effect.

So, if an employer promises to pay an employee $16 an hour, that is not a statutory obligation (as the minimum wage is just $8/hr), it is a contractual obligation. Still enforceable, but not statutory. The distinction is perhaps a bit acadmic, but I hope my explanation makes sense.

The important thing about contractual obligations in employment is that, contrary to statutory obligations, they are always subject to change. Employers may not retroactively change the terms of compensation (i.e. promise $16/hr but then, after the work has alrady been performed, pay the employee the equiavelent of only $8/hr). Moving forward, however, the employer can modify the employee's rate of pay or terms of compensation at any time and for almost any reason.

In your particular case, since it was clear to you that you would not earn your regular commission for assisting Groupon customers (at least I assume that to be the case), your employer had no statutory OR contractual obligation to pay you for what specific work. Perhaps you would have had a contractual entitlement to commission, but since contracts can always change, so too can your commission entitlement.

I hope this helps you make sense of things. Again, please feel free to let me know if you have any further concerns.

Very best wishes to you moving forward.
Patrick, Esq., Lawyer
Satisfied Customers: 6740
Experience: Significant experience in all areas of employment law.
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