I'm a Mortgage Loan Officer at a company with 200+ employees. Currently, I'm being paid $15/hour that counts as a draw. I have two parts to detail. First, for overtime, when my commission exceeds my draw, I'm not paid overtime. I'm also required to backpay draw (including draw overtime) with my commission. Is that right? Second, since I'm a Mortgage Loan Officer, my understanding is loan officers are either to be paid a salary as a draw with commission or hourly in addition to commission. Currently, I'm being paid hourly as a draw, which has me work forced hours (with no overtime as I have to pay it back).
In general, loan officers who sell mortgages are entitled to overtime. However, the title of "loan officer" does not necessarily mean the same thing industry wide. Thus, in order to determine whether or not you are an exempt employee, a detailed analysis of your job responsibilities would be required.
The Department of Labor has recently held that mortgage loan officers performing typical job duties, regardless of the title affixed to them and who spend the majority of their time working in the employer's place of business of the employee's own office, would not qualify as exempt employees.
The draw arrangement may or may not violate California minimum wage and employment laws depending on how much you are receiving.
Contact me for a FREE case consultation 310-550-1555, email: firstname.lastname@example.org. I am licensed in California only and my answers on Avvo assume California law. This message does not constitute legal advice and does not create an attorney-client relationship. Answers must not be relied upon. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.
Employment / Labor Attorney
To determine if you are receiving the compensation you are legally entitled to receive, a substantial analysis would need to be performed to (1) fully understand the nature of your job and its duties, and (2) compare the number of hours you have worked to the money you have received.
It may well be that you are a non-exempt employee who has been substantially underpaid, but it may also be that you have not been shorted much money at all. Certainly cannot make that determination based on the information in your post.
You would be best served at this time to locate and consult with an experienced employment law attorney to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
Employment / Labor Attorney
This is an interesting question with a number of complexities. Preliminarily, though, you should recognize that, while there may be an industry custom regarding the way mortgage loan officers are "normally" paid, the question is whether YOU are being paid correctly regardless of the prevailing industry custom. For example, it is often unlawful to pay loan officers on a salaried basis unless their actual duties fit the exemption (see link below).
The first question is whether your draw of $15 per hour is legal. The short answer is that it is legal for your employer to revert you to an hourly/nonexempt status when you do not make enough commissions to cover your draw, it is NOT legal for your employer to label that hourly payment a "draw" for the purpose of retroactive deductions or charge-backs. That $15/hour was earned during a pay period in which you were not exempt, and it therefore qualifies as "earnings" which cannot be subsequently deducted. In other words, "commission plans may not provide for deductions from wages earned." (See DLSE Enforcement Manual 34.4.2.)
The second question is whether you are entitled to overtime for workweeks in which your commission exceeds the draw. Here, the answer is most likely "no" IF you qualify as either an outside or inside sales representative. An "inside sales representative" is an employee whose whose earnings exceed one and one-half times the minimum wage (i.e. $12.00/hour) and more than half of that employee’s compensation represents commissions. An outside sales representative is someone who "regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities."
Based on your facts, if you are earning more than $15.00 an hour in commissions (i.e., $600.00 per week), then you likely qualify as an inside sales representative and would not be entitled to overtime.
I would encourage you to contact an experienced labor/employment attorney to discuss your situation, as there appear to be potentially serious violations on the charge-back issue that are affecting a number of employees.
I would be happy to discuss with you.
Disclaimer: This reply does not constitute legal advice or the establishment of an attorney-client relationship, and constitutes only general guidance based on the limited information provided, and may not take into account additional relevant facts and circumstances pertaining to your specific situation.