Belmont, CA asked in Employment Law for California

Q: Pay for California commission-only automotive service advisor. Guaranteed min wage while learning. Do I get OT?

I'm considered exempt. While I'm learning, commissions don't exceed min wage, so they pay minimum. I work 12-hr shifts. Must they pay OT for hours exceeding 8 per day/40 per week, or can they pay straight time for everything? Seems to me that, while they're paying me minimum wage, I should not be exempt from overtime because I am not being compensated by commission.

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1 Lawyer Answer

Yitz Erik Weiss

PREMIUM
Answered
  • Los Angeles, CA
  • Licensed in California

A: To answer your question fully would require more details on your current job situation. It is not clear from your question which overtime exemption your employer is applying to your job position.

In a recent case, the Supreme Court in Encino Motorcars v. Navarro determined that service advisors are exempt employees under the Fair Labor Standards Act. However, under the California Labor Code, other than in the case of an outside salesperson, a commissioned employee is typically exempt from overtime only if they earn a minimum of one-and-a-half times minimum wage and more than half their wages are from commissions. If you are not earning more than half your wages from commissions or you are not earning more than 1.5 times the minimum wage, then you may not be exempt and may be entitled to overtime wages.

Depending on the nature of your job, there may be other overtime exemptions that could apply.

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