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If I am a commissioned employee on a w-2 at a salon and

Customer Question
required to stay at work...
If I am a commissioned employee on a w-2 at a salon and required to stay at work even when I do not have clients should I be getting hourly as well for the time I don't have clients or do I just get one or the other?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Kentucky
JA: Has anything been filed or reported?
Customer: Meaning what?
JA: Anything else you want the lawyer to know before I connect you?
Customer: Yes that my boss wants us to change to 1099 as well
Submitted: 1 year ago.Category: Employment Law
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Answered in 36 minutes by:
11/9/2016
Employment Lawyer: Marsha411JD, Lawyer replied 1 year ago
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,554
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
Verified

Hello,

Thank you for the information and your question. If you are a commissioned W-2 employee, then your employer must pay you at least minimum wage for the total number of hours that you are at work. What that means is that if, in a pay period, your commissions divided by the number of hours you are at work does not come up to at least minimum wage, the employer must make up that amount in your pay.

If you are not receiving at least that minimum wage level for all hours worked and your employer will not increase your pay, you have two options to seek legal recourse. One is to file a wage complaint with the State labor department and the other is to hire an attorney to file suit. The first option is free and the second will, at least initially, cost you some money.

You didn't really ask about the 1099 issue, but although that issue is extremely complex and not something that can be determined without a lot of specific information from both parties, your employer cannot just decide to make you an independent contractor unless your situation fits within the law. You can go to the IRS page that discusses the issue, which the State DOL's and tax authorities follow as well, to read more about the law. But essentially, it comes down to control. If your employer does insist that they are going to make you a 1099, you can submit an SR-8 to the IRS for them to make a determination and also file a complaint with the State. Those agencies will make the ultimate decision. This is the link to the discussion I referred to: https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the ratings box above, I will receive credit for assisting you today. Thank you

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Employment Lawyer: Marsha411JD, Lawyer replied 1 year ago

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 9th. For some reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating,please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

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. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

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