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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12339
Experience:  Significant experience in all areas of employment law.
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I work as a commission only sales associate well known

Customer Question

I work as a commission only sales associate for a well known luxury chain retailer in California. I work on a draw against commission basis. If I am told I have to do non selling work when the department is closed shouldn't I get paid charge off time for those hours?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Unfortunately, the law does not require that your employer pay you hourly for non-selling work. The law simply requires that your commissions each pay period, when divided by the number of hours you work, equal or exceed minimum wage plus any applicable overtime. In theory, they could have you perform 39 hours of non-selling work and 1 hour of selling work, and if that one hour of selling work brought you up above minimum wage they would be in compliance with the law.

Thus, this is not really a legal issue but more an issue of fair compensation. If you believe that you are not being paid fairly for your work because you are not getting enough selling opportunity, you can complain to your employer and/or seek alternative employment on better terms. That would be the extent of your recourse under the circumstances.

I hope that you find this information helpful and am genuinely sorry if it is not what you were hoping to hear. 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 moving forward.

Customer: replied 1 year ago.
When I have worked off site for them they have paid me my average hourly for travel time to the site and back and then just commission or draw against commission for the period of selling ( day about 3 hours)..
In the example you give, of working 39 hours of stocking shelves and an hour of sales floor time would mean that I could collect a draw of 40 hours and if I have no sales then in effect I would "owe" them the money received for the 40 Hours, even though I am a commission only sales person and cannot sell either when the store is not open or they have removed me from the sales floor? Sounds more like an indentured servant rathert than an employee?
Expert:  Patrick, Esq. replied 1 year ago.

Not quite. The catch is that if your commissions equal less than minimum wage plus applicable overtime for the hours you worked, your employer must make up the difference. For example, CA minimum wage is $9 an hour. If you worked 40 hours in a pay period and only made $100 in commissions, your employer would need to pay you an additional $260. This is the different between minimum wage for 40 hours ($360) less the $100 you earned in commissions, thus bringing you up to what minimum wage requires.

If this happens regularly, it may not be a job you want to keep because you can probably make more elsewhere. But it is not involuntary servitude--you are free to leave for better work at any time--and you cannot sue your employer if they are paying you at least this minimum amount. It is an issue of adequate compensation but it is not a legal issue.

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

Expert:  Patrick, Esq. replied 1 year ago.

I just wanted to followup with you to make sure that you did not have any further questions or concerns. For some unknown reason, the experts are not always getting replies or ratings (which is how we get credit for our work) that the customer thinks have gone through. In your case I have not yet received either. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the site administrator.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed.

Very best wishes.