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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41220
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I am a painter who works strictly for commission pay.No salary,if

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I am a painter who works strictly for commission pay.No salary,if I don't work I don't make any money.I recieve an insurance estimate with each job I perform,and am paid according to the number of labor hours stated on the estimate.I have recently been getting estimates that are charging our customers for labor operations that I am performing,however the estimate simply shows the labor as being paid as a dollar amount and not an hourly figure,in other words I am not getting paid for the task I am performing but the company is collecting the money from the customer for me performing the task.I have cordially talked to my supervisors about this but I was told that If I were to be paid for everything I do i'd make too much money.I have no contract with my employer other than the understanding that I will be paid according to the estimates labor hour times.Due to my supervisors response I can see that I need to search for other employment however I feel that if anything can be done to right this wrong I should do so.Do I have any legal leg to stand on to prevent this from happening in the future?I have been told by some older people in my line of work that this is called double ticketing,but when I look into what double ticketing is I don't believe that law applies in this case because the dollar amount of the bills the customer is presented with is not different,the money is just not being used for the stated purpose.
Thank you for your question. Please permit me to assist you with your concerns.

This is a good question. Do you have this in writing that you are entitled to an hourly estimate and not a flat fee share of the work expense?
Customer: replied 3 years ago.

I't not in writing,it's the only way I get paid.That's about as solid an understanding as one could have.It used to be that the employer and employee shared a percentage of profit,but that changed years ago.Now the only way I get paid is off the labor hour figure on the estimate.It is what we call flat rate.If the estimate says 4 hours and I do the job in 3 I still get paid four hours and if it takes me 5 hours I still get four hours.

Thank you for your follow-up, Travis.

Here is the issue as I see it. If that is not in writing and it is not formally reduced to a signed agreement, it is an oral understanding or agreement. While those are binding, since it is not in writing, the agreements are fairly flexible and subject to change provided that the parties consent to the changes. Here, if you continued to work for the party giving you the projects, that is deemed to be consent. You would need to contact that party, negotiate new terms, or agree to a modification. Otherwise the changes that you are exposed to are deemed to be valid and controlling.

Your current agreement that you have (or rather had), was based on 'custom'. Custom in the industry is a very strong basis for terms, but it does not beat written terms or actual terms. And here, as it is not in writing, it is not something that can be fully used to control the agreement.

Good luck.

Customer: replied 3 years ago.

Would the list my employer gives me of jobs I did with the hours paid off the estimates and my paycheck stubs which reflect my pay not be enough writing to substantiate that I am paid according to the estimate hours and not any other agreement?

Thank you for your follow-up, Travis.

What you are showing is simply a list of projects. nothing on that documentation points to your own separate agreement for how you are compensated for the work. I really do not see that as substantiation of any contract other than the fact you work or are a contractor for the person giving you the projects to do.

Good luck.

Customer: replied 3 years ago.

The labor hour figures that I am paid on each estimate are determined by a labor time database and reference manual called p-pages.This is not in writing but on computer.My employer has told me that I will be paid according to the computer.The p-pages state the labor times allowed for the operations in question.My employer is charging our customers according to the database and p-pages,just not giving me the allowed labor time and instead keeping the money and not paying me the labor time.

Thank you for your follow-up, Travis.

So just to be clear I understand, if the p-pages state that you are entitled to 6 hours of labor, but it takes you 4 hours, he pays you for 4 hours? Are you an employee or an independent contractor? My answer will change based on your response. Thank you!

Customer: replied 3 years ago.

Employee

Travis,

Can you also respond to my other question, please?
So just to be clear I understand, if the p-pages state that you are entitled to 6 hours of labor, but it takes you 4 hours, he pays you for 4 hours?
Customer: replied 3 years ago.

Sorry about that.If the database says a job pays 4 hours I get paid 4 hours regardless of how long it takes to complete.

Travis,

What I potentially see then is an employment violation. Under state and federal laws, unless you are 'per project', you are required to be paid for all work that you do for the employer, regardless of how long it takes. So if it takes you 7 hours, you are required to be paid for 7 hours of work. In this situation failure to pay you what you are owed entitles you to contact your state's Department of Labor and report him for wage violations. he MUST pay you per hour, and if he failed to do so and her efuses to reimburse you, you can ask the state to investigate and potentially fine him for what he owes you.

Good luck.

Customer: replied 3 years ago.

Yes,if the database says the job pays 4 hours my employer pays me 4 hours.The estimates may have 12 paint labor operations on one estimate.My complaint is that on an estimate with 12 labor operations,I am only being paid for 10.The other two operations are being written on the estimate as a dollar amount on the estimate instead of a labor hour figure.I don't get paid off of dollar amounts on the estimate,I only get paid for labor hours.When I ask my employer why the dollar figure is not being converted into labor time and me getting paid for the work I am doing he refuses to pay me even though he collected money for me doing the job.Again all of the labor times for operations on the estimates are based on database time figures.

Travis,

You are not required to be paid by estimates--you are required, as an employee, to be paid for the work you do. If you work 4 hours, you get paid for 4 hours. If it takes you 8, you get paid for 8. The p-hours are irrelevant to you-if you do not have a flat fee contract you are paid strictly hourly.

Good luck

Customer: replied 3 years ago.

So if I perform a job that takes fifteen minutes,and my employer is paid by the insurance company 15$ for that labor operation but he does not pay me for performing the task then he is wrong.Am I understanding correctly?My recourse should be to contact the labor board and file a complaint.Is my employer held accountable for retaliation if I chose to continue to be a good employee with this same company after filing a complaint?

Thank you for your follow-up, Travis.

That is correct--if you work for him for 15 minutes, you are entitled to be paid for those 15 minutes. If the employer retaliates, you can escalate it to the labor board and then also file a grievance with the EEOC for retaliation and hostile work environment. An employer is forbidden to retaliate based on your proper reporting and a formal investigation.

Good luck.

Customer: replied 3 years ago.

Thanks Dimitry

Travis,

You are most welcome, glad to help! If satisfied with my work, please do not forget to positively rate my answers so I can obtain credit for helping you. Thank you and please be well!

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