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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
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Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I am a mechanic paid on commission, I work for a privately

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I am a mechanic paid on commission, I work for a privately owned franchise located in Northern IL. It seems more and more lately that they are trying to get me to quit by an obvious attempt to restrict my workload and playing obvious favoritism to the other technicians, and/or trying to build a case to fire me without chance of unemployment benefits.

Saturdays we are open from 7:30am to 4pm, then they expect the hourly guys and the commission guys to stay from 4 to 5pm and clean the shop floor etc.... even though the commission guys have no choice but to do it for free as there is no book time/commission pay to wash floors, yet the hourly guys stay punched in and get paid their normal wage to stay and wash floors.

This last Saturday before Labor Day I informed my manager twice that I had to leave at 4pm(store closing) as I had personal things to take care of right after work, of which two other employees and a camera recording audio and video had witnessed, and also witnessed my manager say "ok, no problem, just finish up what you can and I will finish whatever you don't finish by 4pm". I had also suggested to the manager that the big job I was working on would be impossible to complete by 4pm as the part that needed to be replaced was going to show up in the afternoon(2-3pm) instead of in the morning as they had previously told me, and we close at 4 and I could not stay late to finish. I had also suggested that he give the job to another technician who was able to stay late and finish the job, or have the customer bring the vehicle back when we would have sufficient time to properly fix the vehicle. The manager was aware of the situation and had pulled that job outside and pulled me off of it stating "that truck is no longer priority" due to an overload of other cars/work that had been dropped off that morning and had to be completed.

After I finished working on 3 other vehicles, I had pulled in the big job again and got started on it about 1:30pm at which time I had decided to take my lunch break(which management DOES NOT like anyone to take). I continued to work on the truck after lunch and finished one of the two tasks that needed to be done to this particular vehicle, figuring I'd be the nice guy and at least stay to finish the one task and would only have to leave him to finish the other small task. At this point it was now almost 4:30.

After i had finished the one task, I had started putting my tools away and tried to leave asap as I was now 20-30min late for my previous engagement after work. The manager walked into the shop, saw me putting my tools away and cleaning up at which point he started to tell me that I could not leave because the job was not finished!!! I was in awe as I had not only made it abundantly clear, twice, that I had to leave at 4pm, but also the fact that he had understood my situation and agreed to finish whatever I couldn't by 4pm, twice, and with witnesses!! He continued to yell at me, threw his arms in the air and said I'm getting written up for insubordination, quality of work and time spent on work, as he DEMANDED respect from me as my manager?

The shop was closed Sunday and Monday, I came in this morning(Tuesday) only to be pulled into the main office, continued to get yelled at and then he expected me to sign the write up, which I could not sign as there was ZERO truth to it. He then stated I was being sent home for the day, of which I can only imagine was to make me mad as we have to work a full day after a holiday to get paid our holiday pay.

Sorry for the novel, I'm just trying to be as accurate as possible here, fully inform you of the events that happened.

1. What are my options at this point? I know their camera system records up to two weeks of video and audio, can I make them save the footage so that I can prove my case?

2. As I stated, my employer/management HATES when people take lunch breaks.... most of the time we are lucky to get one. Most days we are scheduled 10-13hr days and if we are busy they will tell us we have to finish whatever jobs we are working on before taking a 1/2hr break. Most times people start at 7:30 and won't get a break until 4, 5, 6pm, if we're lucky enough to get a break at all. What are my options to correct this, as I know legally we are allowed at least a 20min break after 5hrs of work when scheduled for 7.5hrs or more.

3. Can they legally make the commission guys stay an hour after work to clean floors EVERY Saturday, without pay?

4. Also, we use ADP online to punch in and out as a time clock, ADP keeps all of our clock in/out records.... I had noticed over the last 6-7 months that people were complaining about their punch in/out times changing without their consent or permission. Recently I have learned that the regional manager was editing everyone's punch times to hike up his commission check at the end of the month as he is paid a % of shop profit. Owners found out and cover it up. Highly illegal?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 11 months ago.
Hello,

Thank you for the information and your questions. I will try to address each one of your issues below.

1. What are my options at this point? I know their camera system records up to two weeks of video and audio, can I make them save the footage so that I can prove my case?
Your options in terms of the suspension are limited to whatever any contract or company policy you are working under might say. What I mean by that is that unless you have a contract for a specific term that lays out all the terms and conditions of employment or there is a written company policy that prohibits what your employer has done, then they always have a right to change the terms and conditions of employment and to issue discipline as they deem appropriate. So, the last minute change in his agreement that you could go home early and his yelling at you and suspending you is not unlawful absent the restrictions I mentioned above, even if it is clearly poor management. So, assuming that you don't have a contract or company policy to support you on this issue, there isn't a legal option but you might want to speak to his boss.

2. As I stated, my employer/management HATES when people take lunch breaks.... most of the time we are lucky to get one. Most days we are scheduled 10-13hr days and if we are busy they will tell us we have to finish whatever jobs we are working on before taking a 1/2hr break. Most times people start at 7:30 and won't get a break until 4, 5, 6pm, if we're lucky enough to get a break at all. What are my options to correct this, as I know legally we are allowed at least a 20min break after 5hrs of work when scheduled for 7.5hrs or more.
You can, as well as your coworkers, file a complaint with the Illinois Department of Labor since this is a violation of State law. You can find the complaint form at: http://www.illinois.gov/idol/Pages/Complaints.aspx

3. Can they legally make the commission guys stay an hour after work to clean floors EVERY Saturday, without pay?
Yes, they can make any employee work as many hours as they deem appropriate as long as they don't violate the day of rest laws of the State. In addition, technically, as long as the commission-only employee's wages work out to be at least minimum wage when divided by all of the hours they have worked (including the extra hours), then the employer is not violating the law. In other words, it is only required that an employee receive minimum wage for all hours worked and that is calculated at the end of the pay period by dividing wages by hours worked. Of course, if there is overtime, then the employer would have to pay time and a half of their regular rate of pay for all hours worked over 40 hours in a week. (Even with commissioned employees in most cases, the employer has to calculate what their "regular rate of pay" is for that period and then multiply it by 1.5 times for their overtime). If they are not being paid as I described above, then they can file a wage complaint, which you can find on the same link I provided above.

4. Also, we use ADP online to punch in and out as a time clock, ADP keeps all of our clock in/out records.... I had noticed over the last 6-7 months that people were complaining about their punch in/out times changing without their consent or permission. Recently I have learned that the regional manager was editing everyone's punch times to hike up his commission check at the end of the month as he is paid a % of shop profit. Owners found out and cover it up. Highly illegal?
Although an employer has the right to correct time clock entries if they are incorrect, they cannot make changes to the detriment of the employee if they are actually reducing the employee's hours below what they actually worked. That too should be reported to the IDOL in a wage complaint.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 11 months ago.
1. What are my options at this point? I know their camera system records up to two weeks of video and audio, can I make them save the footage so that I can prove my case?
Your options in terms of the suspension are limited to whatever any contract or company policy you are working under might say. What I mean by that is that unless you have a contract for a specific term that lays out all the terms and conditions of employment or there is a written company policy that prohibits what your employer has done, then they always have a right to change the terms and conditions of employment and to issue discipline as they deem appropriate. So, the last minute change in his agreement that you could go home early and his yelling at you and suspending you is not unlawful absent the restrictions I mentioned above, even if it is clearly poor management. So, assuming that you don't have a contract or company policy to support you on this issue, there isn't a legal option but you might want to speak to his boss.

~~ I figured.... too bad his boss is the one manipulating him, and is also high on cocaine most days/all day. (I know, excellent place to work)

2. As I stated, my employer/management HATES when people take lunch breaks.... most of the time we are lucky to get one. Most days we are scheduled 10-13hr days and if we are busy they will tell us we have to finish whatever jobs we are working on before taking a 1/2hr break. Most times people start at 7:30 and won't get a break until 4, 5, 6pm, if we're lucky enough to get a break at all. What are my options to correct this, as I know legally we are allowed at least a 20min break after 5hrs of work when scheduled for 7.5hrs or more.
You can, as well as your coworkers, file a complaint with the Illinois Department of Labor since this is a violation of State law. You can find the complaint form at: http://www.illinois.gov/idol/Pages/Complaints.aspx

~~ I looked up the complaint form, I'm assuming there's no option to send the complaint anonymously? Last thing I really wanna do is put a target on my back...


3. Can they legally make the commission guys stay an hour after work to clean floors EVERY Saturday, without pay?
Yes, they can make any employee work as many hours as they deem appropriate as long as they don't violate the day of rest laws of the State. In addition, technically, as long as the commission-only employee's wages work out to be at least minimum wage when divided by all of the hours they have worked (including the extra hours), then the employer is not violating the law. In other words, it is only required that an employee receive minimum wage for all hours worked and that is calculated at the end of the pay period by dividing wages by hours worked. Of course, if there is overtime, then the employer would have to pay time and a half of their regular rate of pay for all hours worked over 40 hours in a week. (Even with commissioned employees in most cases, the employer has to calculate what their "regular rate of pay" is for that period and then multiply it by 1.5 times for their overtime). If they are not being paid as I described above, then they can file a wage complaint, which you can find on the same link I provided above.

~~ I looked up overtime rules for Illinois.... first thing it states is that "salesmen and mechanics involved in the sale or service of cars and trucks at dealerships". Would a private owned franchise be considered a "dealership"?

4. Also, we use ADP online to punch in and out as a time clock, ADP keeps all of our clock in/out records.... I had noticed over the last 6-7 months that people were complaining about their punch in/out times changing without their consent or permission. Recently I have learned that the regional manager was editing everyone's punch times to hike up his commission check at the end of the month as he is paid a % of shop profit. Owners found out and cover it up. Highly illegal?
Although an employer has the right to correct time clock entries if they are incorrect, they cannot make changes to the detriment of the employee if they are actually reducing the employee's hours below what they actually worked. That too should be reported to the IDOL in a wage complaint.

~~ From what I understand he was rounding the times down taking 1/4hr away at a time, and all punch times had a "edit" symbol next to them indicating every single time had been changed for months and months. I'm also assuming I'd have no choice to file a complaint anonymously?

Thanks for your time
Expert:  Marsha411JD replied 11 months ago.
Hello again and thank you for your reply. I have attempted to address your follow up questions below. As always, let me know if you have additional questions.

I'm assuming there's no option to send the complaint anonymously? No not really, because the issue is employee specific. Of course you can state that this is happening with all (or how ever many) employees and request that your name be kept in confidence, but the State has to investigate based on a particular employee, even though they can ultimately audit all of the employer's payroll records and question other employees. For whatever it is worth, it would be unlawful for the employer to take retaliatory action against an employee who files a complaint or suit based on wage or employment laws.

Would a private owned franchise be considered a "dealership"? Yes, as long as they have a "dealer's" license, it wouldn't matter if they were owned by one of the big companies or were smaller. I was afraid this might be the case, but since you didn't specifically mention it was a dealership, I didn't address that exemption. Of course, if you are not sure, the complaint can still be filed and the employer has to show that they fall within the exemption.

From what I understand he was rounding the times down taking 1/4hr away at a time, and all punch times had a "edit" symbol next to them indicating every single time had been changed for months and months. I'm also assuming I'd have no choice to file a complaint anonymously? What you described would be unlawful. Although rounding is allowed under the Fair Labor Standards Act, it cannot cumulatively come out in a manner that shorts the employee of time worked. Yes, same thing, you need to make a complaint based on your own wage records, so that you can be made whole. It would be nice if all employees who are negatively effected submit a complaint. The only other alternative is to file suit, but of course, they will know who did that as well.
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Category: Employment Law
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Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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