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Commissioned only / W2 employee / CA

I am commissioned only, W2 employee... & my job does not involve any sales. I do the processing of clients paperwork for debt related settlements or bankruptcies & want to know if this type of work justifies bring paid commission only. We are required to be at our desk for 8 hours, clock in & out for breaks & lunches... & have to answer a call queue & assist the clients... which tweakes away from us being able to earn money. The client services department employees, whom only answers call queues, are paid hourly. We are offered medical coverage, but do not get any PTO, vacation, sick or holiday pay. The other department in the company that is commissioned only can earn units to be paid on based on performance, but we do not... are we bring discriminated against? Our current pay was set years ago (in 2010) at $35 a file. Since then, additional work or steps are now required before we are paid... and quality control requires more than they did when the pay structure was put into place. We were told multiple times in verbal meetings to show activity & the pay per file would be looked at... & it never was. Are there any laws being violated?


Topic Expert
Wayne Spivak
Title: President & CFO
LinkedIn Profile
(President & CFO, |

This should be directed to an Attorney who specializes in Labor Law (both Federal and State).

Note: The Fair Labor Standards Act (FLSA) states that one (or only) exemption to the Federal (and State) hourly wage for Outside Sales people are:

1) Your primary duty must be making sales, obtaining orders or getting contracts for service or for the use of facilities for which a consideration will be paid by the client or customer; and

2) You must be customarily and regularly engaged away from your employer’s place of business.

So again, talk to an Attorney who specializes in Labor Law.

Topic Expert
Malak Kazan
Title: VP, Special Projects
Company: ERI Economic Research Institute
(VP, Special Projects, ERI Economic Research Institute) |

As an "inside-sales" employee, you should be paid the minimum wage if the commission you earned do not meet this threshold. This is part of the FLSA Wayne mentioned. The bifurcated benefits is an employee relations issue and employers can differentiate offerings as long as there is no adverse impact to a "protected" class of employees (e.g. discrimination based age, race, gender). Hope this helps.


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