meal-and-rest-break-commissioned-employeesCommissions are wages earned from selling a product or service. If an employee is not involved in the actual selling of the product or service, then what they earn is not considered commission. This can be a bit tricky at times to discern. One example is a mechanic who is paid a portion of the hourly rate the customer is paying the mechanic’s employer. This is not commission because the mechanic is performing the service but not selling it. California law requires a commission compensation plan to be in writing. This agreement must explicitly state how the commission is calculated and how it will be paid.

Here are a few examples of how commission may be calculated:

  • Price percentage- based on a percentage of what the customer pays
  • Profit percentage- based on a percentage of the profit made from the sale
  • Fixed amount per sale- a flat rate payment based on the number of products sold
  • Fixed-floor- an employee may receive a fixed rate for something sold or a certain percentage, depending on whichever one is higher
  • Mixed agreement- varied percentage tied to total sales

If you have any questions about your rights for being paid commission, give one of our attorneys at California Labor Law Employment Attorneys Group a call to schedule a free consultation so we can go over your rights and see if any have been violated by your employer.

Meal and rest rights for hourly employees

Employees that are paid hourly and not by commission are entitled to a certain number of meal and rest breaks based on the number of hours they worked. For every 4 hours worked, an employee is entitled to 10 minutes of rest that is paid. If you work over 5 hours, you are entitled to one meal break that is at least 30 minutes long and unpaid.

Here’s a chart that shows you how many rest breaks you get according to how long you work:

  • 0-3:29 hours worked: 0 rest breaks
  • 3:29-6 hours worked: 1 rest break
  • 6:01-10 hours worked: 2 rest breaks
  • 10:01-14 hours worked: 3 rest breaks
  • 14:01-18 hours worked: 4 rest breaks
  • 18:01-22 hours worked: 5 rest breaks
  • This chart will tell you how many meal breaks you get:

  • 0-5 hours worked: 0 meal breaks
  • 5:01-10 hours worked: 1 meal break
  • 10:01-15 hours worked: 2 meal breaks
  • 15:01-20 hours worked: 3 meal breaks
  • 20:01 + hours worked: 4 meal breaks
  • Remember, these are for non-exempt employees, and employers must adhere to minimum wage and overtime laws with these employees. Exempt employees are people who have a job that is not subject to wage and hour laws. Commissioned employees are exempt when

  • They earn at least one and a half times the minimum wage
  • More than half their income is commission based
  • They work in the mercantile industry which includes retail, or certain professions like technical, clerical, mechanical, and other similar occupations
  • Since meal breaks are not required to be paid and commissioned employees are exempt, there are less complications with commissioned employees and their meal breaks. However, rest breaks are paid, which makes things a little more complicated for commissioned employees.

    It wasn’t until recently that commissioned employees were granted the same privileges as workers that are paid hourly. Newly, the California Court of Appeals ruled that commissioned employees are equally entitled to rest breaks as hourly employees. In Vaquero v. Stoneledge Furniture, the courts found that compensation plan for commissioned employees did not explicitly include payments for breaks, which inherently discouraged workers from taking breaks because if you were on break you would not be able to make commission. This was unlawful because an employee’s pay was the same regardless if they took breaks or not. If you are a commissioned employee and 50% or more of your wages come from commission, then you are entitled to a separate hourly wage for your rest breaks. For every 4 hours worked, you are entitled to 10 minutes for a break. This break must be paid at no less than minimum wage rate. These break requirements are now similar to those for workers paid hourly, except that commissioned employees must receive minimum wage or more, while for hourly workers it is required that their rate of pay for rest breaks must be the same as their regular rate of pay.

    In Vaquero v. Stoneledge Furniture, Ricardo Burmudez Vaquero and Robert Schaefer filed a class action lawsuit against their former employer, Stoneledge Furniture, claiming their employer’s pay plan did not follow California law. The two were sales associates at Stoneledge who were paid on commission. Stoneledge sales associates would earn a percentage of sales guaranteeing that they would earn at least $12.01 an hour. There was a guaranteed draw for each sale if the commission percentage did not meet $12.01 an hour. A draw is an advancement, so they would receive the draw to meet the requirements, but it would later be docked from their paychecks. Their pay plan did not include any kind of compensation for time spent not selling. Vaquero and Schaefer claimed that Stoneledge did not compensate employees for their rest periods. The rest periods were documented, but the draws were not compensation for the rest periods, instead they were considered at best, interest free loans. There was no distinct wage for their rest periods. The courts first did not rule in their favor, but the appellate courts overturned the first ruling. The courts finally concluded that when the sales associates were paid only on commission, that commission did not account for rest periods because that compensation was later taken back by the company in a later paycheck. This is why now employers must pay commissioned employees for rest breaks as a separate compensation.

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    Thanks to Vaquero and Schaefer’s persistent attitude, commissioned employees in California now have more rights when it comes to their rest periods. If you are a commissioned employee, make sure you know your rights for break compensation. You are entitled to a paid break just like other employees, and if your employer is withholding this from you, you need to address this by filing a lawsuit with the help of one of our commissioned employee rest break attorneys. The courts did not rule how employers should put these new guidelines into practice, so there still may be some grey areas in adhering to these laws since there are multiple ways of meeting the standards. Nevertheless, there should be some kind of modification made by employers. If you are a commissioned employee and feel your employer is unlawfully compensating you, then it’s time to schedule a free consultation with one of our commission employee rest break attorneys. You will be able to speak with one of our experience attorneys free of charge. We will also take on your case without asking for any upfront fees. You will only be asked for a small fee if we win your case, this is our zero fee guarantee. If you’ve already consulted an attorney, it’s good to get another legal opinion from someone else. Contact one California Labor Law Employment Attorneys Group’s commissioned employee rest break lawyer to receive a free second opinion. Our goal is to build up a strong case for you and make sure you receive maximum compensation.

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