Drivers for the company I work for routinely work from 10 to 12 and even 14 hours per day. Warehouse employees are paid overtime but not commissioned employees.
We are, in essence, expected to finish our route every day regardless of the time spent.
I spoke today with a driver from Frito-Lay who informed me that he was compensated in the same fashion and was eventually awarded back overtime pay after some litigation.
Can you shed any light on this situation for me?
The answer is a qualified yes. But this scenario presents one of the more complicated types of overtime questions. The analysis considers the amount of time you spend engaged in sales activities versus delivery activities. What is clear, however, is that you'll need to speak to an attorney who has experience in this type of wage and hour case.
You are owed overtime pay if you don't make at least $13.50 per hour AND if under 50% of your pay is commission based. It is called the Commission Pay Exception to Overtime. Calculate your hours and pay and determine if you have earned at least $13.50 per hour and if over 50% of your pay is based on commissions. If you believe you are owed overtime, you can discuss it with your employer or call an employment law attorney to discuss. It is unlawful for your employer to retaliate against you for asserting your right to overtime pay if you do so in good faith. Find contact info for employment law attorneys on Avvo.com.
I'm going to disagree respectfully with my colleagues. I think there is a good chance you are owed overtime compensation, and I don't believe that either of the two exemptions mentioned by my colleagues applies.
First, you are a delivery driver following a delivery route; it doesn't sound like you are doing any sales. Therefore, the outside salesperson exemption (hinted at by Mr. Olsen) should not apply. Second, because it appears you are employed in the transportation industry (i.e. "any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another whether by rail, highway, air, or water, and all operations and services in connection therewith..."), you should be covered by Wage Order No. 9, which does not provide for a "Commission Pay Exception" alluded to by Ms. Karila.
In any event, you should discuss your situation with an experienced employment lawyer to determine your rights and your next step. Many of us offer free consultations and do not charge any money up front, so do not let financial concerns stop you from retaining an attorney.
This is an interesting question, which as you can see from the varied responses, calls for more detail on your particular situation. Overtime exemptions re governed by several wage orders, which apply differently to different industries and job categories. It is complicated. Boiling it down, though, if you are not getting commissions that exceed half of your pay, you are entitled to overtime. You must get paid your commissions every pay period, when they are earned. Even if you are getting commissions, there may be arguments to make that the commission sales exemption does not apply, for example, if you work for transportation company, not a wholesaler. You should take a few pay stubs and time cards and commission sheets in to see a local employment lawyer who can advise you. You can find this type of lawyer Avvo, and most who know this area of law will give a free consultation on this sort of issue.
More facts could change the answer. This response is not legal advice.
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