Employee paid based on sales comission

[AlexInCali]

What is the name of your state (only U.S. law)? California

My life-partner works in a department store and earns a base rate that is less than minimum wage. He makes a tiny commission on sales. If his gross pay does not reach the minimum wage requirement the company "advances" him the difference and then he has to pay it back out of a subsequent paycheck. I've already looked into this behaviour and it's, unfortunately, completely legal, according to California state labor laws.

My issue has to do with the fact that he is frequently required to perform tasks that have nothing to do with making sales. For example, stocking shelves, taking inventory, or setting up displays.

His employer argues that he can still make sales while performing these activities, yet the feeling is that he isn't fulfilling his job obligations if he doesn't complete the non-sales tasks (for example, to help customers and make sales instead).

He is also frequently scheduled to work at times when the store is not open (i.e. 30 minutes before store opening, to get everything ready.) The explanation for that one is that this directly affects sales.

It all sounds very fishy to me.

What say you? (short of get a different job... yes, we know that, and he's looking.)

 

[las365]

How long has he worked there?

 

[AlexInCali]

How long has he worked there?

He's worked there for about 2 and half years. He is full time at 32 hours a week.

 

[AlexInCali]

I told him to start keeping a log of all the times when he's unable to sell, because the store is not open or because he's been tasked with non-sales activity. When the store isn't open, technically he's supposed to get a "benefit rate" above minimum wage for that period of time, but he doesn't. The explanation was that the work he's doing is in direct relation to his ability to sell, and therefore the benefit rate doesn't apply. Supposedly that's only for company meetings and training.

Keeping a log the right thing to do?
Or doesn't matter?

Am I just being spoiled? It just seems to me that if you're paycheck depends on sales commission, you should be allowed to make sales.

 

[pattytx]

He must be paid at least minimum wage for all hours worked, guaranteed. That means adding his hourly rate to his commission and dividing by the number of hours worked in the workweek. He cannot be required to "pay back" any "advances" that would take him below minimum wage either for the particular workweek in question (the week for which the "advance" was given) or in the workweek in which they would be deducted.

He can file a complaint with the DLSE.

 

[AlexInCali]

He must be paid at least minimum wage for all hours worked, guaranteed. That means adding his hourly rate to his commission and dividing by the number of hours worked in the workweek. He cannot be required to "pay back" any "advances" that would take him below minimum wage either for the particular workweek in question (the week for which the "advance" was given) or in the workweek in which they would be deducted.

He can file a complaint with the DLSE.

Patty,

Thank you so much for taking the time to respond. I really appreciate your effort. I'm not sure I understand what you're saying though. The way he is paid, his paycheck will never be less than minimum wage. You say he can not be required to pay back the advance, but, as I understand it, he in fact wouldn't be required to pay back that advance out of his commission unless that would also not take his paycheck below minimum wage. This is a huge national department store chain.

To be clear, though, that's not really my issue. My issue is that if you depend on sales commission to get your paycheck up to minimum wage, then shouldn't he be allowed to actually make sales? His employers explanation of the work performed when the store's not open and when performing non-sales duties just sounds wrong to me.

Still, as I mentioned, maybe I'm just being "spoiled" about this.

To me the analogy would be being a car salesman, working on commission, but then being forced to wash cars instead of being allowed to sell them.

Maybe the reason that this is OK is because he does make an hourly rate, albeit less than minimum wage?

Anyway, again, I really appreciate your response. Thanks!

 

[las365]

Alex, send me a private message. Check the settings in your User CP (upper left corner of the screen) to enable that.

 

[pattytx]

I'm not sure we're saying the same thing, but let's use an example for one workweek.

Worked 32 hours (and no daily overtime) at, let's say, $7.00/hr (which is below minimum wage in CA). That's $224 for the week. Minimum wage requirement is $8.00 per hour, $256 for 32 hours. And let's say his commission is only $25 for the week. That's a total of $249 and the employer supplements it for the shortage of $7. The employer is now in compliance with the minimum wage law, but that $7 can NEVER be deducted from future pay, even from pay for a future workweek where his gross pay exceeds $256.

However, he is required to do whatever safe and legal tasks the employer assigns him, unfair as it may be. Either way, he must receive at least minimum wage for all hours worked.

 

[AlexInCali]

Patty:

You're explanation is excellent. Thanks for trying to help. It seems some folks come to these forums just to be mean (internet forums in general, really).

I think you are right... yes, unfair and unethical perhaps, but not illegal. It seems to me the company tries to make sure everyone makes as little money as possible. It's strange because to me it would seem that they are affecting their own bottom line. How is decreased sales good for the company?

I think he will start by filing a complaint with the company HR, because the company's own policy states he needs to be paid a benefit rate in situations where he can not sell. The policy seems clear to me. I think it's his supervisor and store manager who are essentially violating their own company's policy.

I just hope he can find a new job soon, but as you know, jobs are hard to come by these days.

I've appreciated all your comments. Thanks again!

 

[pattytx]

Patty:

You're explanation is excellent. Thanks for trying to help. It seems some folks come to these forums just to be mean (internet forums in general, really).

I think you are right... yes, unfair and unethical perhaps, but not illegal. It seems to me the company tries to make sure everyone makes as little money as possible. It's strange because to me it would seem that they are affecting their own bottom line. How is decreased sales good for the company?

I think he will start by filing a complaint with the company HR, because the company's own policy states he needs to be paid a benefit rate in situations where he can not sell. The policy seems clear to me. I think it's his supervisor and store manager who are essentially violating their own company's policy.

I just hope he can find a new job soon, but as you know, jobs are hard to come by these days.

I've appreciated all your comments. Thanks again!

I've been known to be mean, but that's only with people who are belligerent.

If there is some recourse internally with the "benefit rate" you speak of, I would certainly encourage him to pursue that.