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You are here: Experts > Business > Corporate Law > Employment Law > Commission earings and time requirements
Employment Law - Commission earings and time requirements
Expert: Thomas R. Ballas - 10/29/2009
Question
I am an employee working in inside/outside sales for a very small company (under 10 employees) and I signed a contract requiring me to work a minimum of 40 hours per week. I do not receive any base, hourly or salaried compensation, my pay is based 100% on the sales I make. I receive an advance at the end of the month until my commissions are calculated and then the advance is fully deducted when I am paid for the sales. All of the sales I make are for custom made goods. I consistently exceed my monthly quota for sales.
My employer has started recording any hours during 8-5 that I am not in the office, whether on outside calls or for personal reasons, and without regard for the additional time worked before or after regular business hours. There is no distinction as to why I am away from the office. This record is made public and is posted on a wall calendar for anyone and all to see, and is also subject to errors as the time missed is being reported by another employee to be recorded by the owner's wife at a later time.
I have been verbally screamed in front of customers and other employess on more than one occassion by this co-owner and now I am being written up for excessive absenteeism when the truth is I am either out on sales calls or have worked before or after normal business hours to make up the difference for personal time off; like flex-time. There is no record other than my own of this make-up time. This has gone so far as requesting other employees to comment in a round-robin format about their personal feelings on how it affects them when I am out of the office. This has being going on for about 4 months and it has demoralized and de-motivated me, and is greatly affecting my ability to interact with co-workers who I rely on to process my custom orders correctly. Additionally, the financial impact of any mistakes/losses on these custom orders is deducted from my commissions, but there is no deduction from the pay of any of the time-based employees who probably originated the error to begin with.
I am also required to attend regular weekly and monthly meetings without compensation that everyone else attending receives as a salaried or hourly employee. Lastly, I am required to assist walk-in customers with sales that are under a certain dollar value for which I receive no compensation, and to perform certain other tasks that take me away from selling but for which I receive no compensation at all.
My questions:
1. are there any legal statutes prohibiting employers from demanding a minimum requirement for hours worked and a specified shift schedule when compensation is not based on time;
2. is it legal to make public my attendance record or is that considered confidential information, what are the legalities concerning the input of other employees on a personnel matter regarding a co-worker, and how do I go about correcting this;
3. what are the legal precedents for deducting earnings from one employee for mistakes made by others;
4. is the company legally required to pay me for time spent on tasks which do not result in a commissioned sale? (the only way I am compensated).
I thank you for your consideration to this matter.
Answer
Demaris:
I am not an attorney but will answer as best I can.
No. 1
Employers may set the hours of the position as they see fit. To my knowledge, no statutes on setting minimum hours.
No. 2
I do not think it illegal to make your attendance record available to others, though it is certainly not professional to do so, and not a standard HR policy.
No. 3
In most states, it is illegal to deduct pay from an employee without the express written consent of that employee. If you earn the money, it is owed you by the employer.
No. 4
You should be paid at least minimum pay for all time worked. If your commissions do not equal minimum wage when divided by the number of hours worked, then in most states you must be paid the difference, in order to get you to minimum wage.
Tom Ballas
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