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Am I entitled to overtime? Im payed by weekly $25.50/hr for…

Am I entitled to...

Am I entitled to overtime? Im payed by weekly $25.50/hr for 40 hrs but sometimes work more

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

12.50 sorry not 25

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes, I get commission if I sell furniture (3%), don't get sick days or vacation

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Answered in 10 minutes by:
8/21/2017
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 125,310
Experience: 20+ Years of Employment Law Experience
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you are an hourly employee and a commissioned salesman, there is an exemption under the Fair Labor Standards Act from overtime payments. Section 7(i) of the FLSA exempts from the FLSA's overtime requirements "any employee of a retail or service establishment ... if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable ... under section 6 [minimum wage], and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services." See: 29 U.S.C. § 207(i).
So, if you fit into that definition above, you would not be entitled to overtime if you are employed by a retail or service establishment;
your regular rate of pay exceeds one and one-half times the applicable minimum wage; and more than half you total earnings in a representative period must consist of commissions on goods or services.
If you do not fit that criteria, then you need to file a wage claim with the US Department of Labor, Wage and Hour Division, and they have to investigate your employer and will pursue any overtime due to you.
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Customer reply replied 10 months ago
Am I entitled to sick days or vacations? We don't get commissions monthly, employer decides which commissions we get.

Thank you for your reply.

There is no law entitling employees to sick or vacation time with the exception of CA which has a mandatory 3 days a year sick leave law. If you do not get regular commissions, you are an hourly employee entitled to overtime if you work over 40 hours a week and should file a complaint with the US Department of Labor Wage and hour division.

Ask Your Own Employment Law Question
Customer reply replied 10 months ago
One last question, can and/or should a 1099 follow a schedule and regular employee duties?
Thank you for your reply
An EMPLOYEE receives a W-2 not a 1099 and if the employer has misclassified you as an independent contractor (1099) and not an employee, you would add that into your complaint to the US DOL, as it is illegal to try to pay an employee as an independent contractor.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Ask Your Own Employment Law Question
Customer reply replied 10 months ago
Thank you so much for your time. Information has been very useful
Thank you for your reply.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 125,310
Experience: 20+ Years of Employment Law Experience
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