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Employment Law/Need advice please


I am a non commissioned Auto Service Advisor. I work in excess of 50 to 60 hours per week and are not compensated by commission or overtime. My employer has been making partial day deductions for missed time for doctors appointments and or being sick. If he is not making the deduction he makes me make up time on my off Saturday in which I get every other Saturday off.
I get no sick or personal time and vacation is not eligible until after 1 year.
My question is am i truly an exempt from overtime employee. It seems to be a very grey area but a lot of what i see online dictates that being that I do not make commission I have no personal or sick time bank and the fact that my boss has been making partial day deductions takes me out of the exempt classification.
But also it seems that merely the fact that I work at a garage selling service makes me exempt. I hold no responsibility other than selling service I do not manage I do not hire I do not fire I do not discipline  I have no pull in any respect other than selling service. Any matters of importance have to be addressed with the owner.
The mechanics that I work with get overtime and from what I've read online they are supposed to be the same type of employees.
I've also read that there have been rulings that's says service advisors service managers and the like are supposed to be non exempt if not paid at least half of their salary by commission.
Basically I'm just looking for clarification in to see if there is any litigation for my situation. I've tried talking to my boss about it and basically he walks away and says if I don't like what I'm being paid there's the door.

Thank for your time.


Michael Reeder

Mike - You do not qualify as an exempt employee in any way I can see.  Outside sales persons can be exempt, but those are the folks who travel from customer to customer and spend most of their time out of the office.  The other categories are executive, professional, administrative and computer professional.  Your job falls within none of those categories.  Not only that, but salaried exempt employees have to be paid their weekly salary without most deductions such as the ones your boss is making.  If you work some time for each of five days, you are entitled to your entire salary.  You are misclassified in two distinct ways.

If you contact the New Jersey or federal Department of Labor and file a wage complaint, you should be able to get the money you are owed for all of the overtime you worked.  Your employer is legally prohibited from firing you for exercising your rights under federal employment law,, but that doesn't mean you won't see some retaliatory attempts.  However, you may be owed quite a lot of money if you consistently worked long hours.  You'll have to decide when and whether to pursue this.  Keep in mind that the retroactivity period is two years - you don't want to wait too long before filing your wage claim.  Good luck.

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Margaret M. deMarteleire


I can answer most questions about employment law, federal or state. I am an attorney, not an HR professional, so questions about HR careers, coursework, prospects, etc. are not within my scope.


Attorney for 20 years, currently working exclusively with employment law - FLSA, FMLA, federal contracts, pay, etc.

Temple University School of Liberal Arts, BA, Rhetoric & Communication, 1982 Temple University School of Law, JD, 1990 Certificate in HR, Cornell University ILR School, 2006

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