‘Inside’ and ‘Outside’ Considerations of Minimum Pay for Salespeople

Q: I was recently told that all employees are entitled to a minimum wage, even if they are classified as salespeople who receive only a commission. When I raised this issue with my manager, I was told that the company doesn’t pay minimum wages for periods in which I didn’t earn a commission. I was told that if I press the issue, I would be terminated. Is this legal?

--D.D., Rancho Santa Margarita

A: It depends on whether you are an “outside” salesperson or an “inside” salesperson.

“Outside” salespeople regularly spend more than half their working time away from the employer’s place of business engaged in the selling of goods or services. They may be paid entirely on commission; that is, no minimum wage need be paid.

“Inside” salespeople typically work primarily at the employer’s place of business. These include telemarketers and those who take orders over the phone or the Internet.

They must be paid at least the minimum wage for all hours worked. If you are an “inside” salesperson, you are entitled to be paid minimum wage.

The law also prohibits your employer from firing you for insisting that you be paid.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Nonexempt Workers Owed Lunch Break

Q: What is the law regarding lunch time in a full-time position? We are told that our workday is 9 to 5. If we take an hour’s lunch, we are told we have to stay an extra hour--until 6. What does the law say?

--P.J., Woodland Hills

A: It would depend on whether you are an “exempt” or “nonexempt” worker.

Nonexempt workers generally are not salaried professionals, managers or administrators. If you are a nonexempt worker, the employer must allow you to take an unpaid lunch break of at least half an hour.

The employer can require you to work extra time any day if you are paid appropriate compensation for any overtime work. If you refuse to work as required, you can be fired.

Actually, you may have been paid for more hours than you deserved. Your question implies that if you take less than an hour for lunch, such as half an hour, you would only have to work until 5.

So if you are paid for eight hours of work even though you actually only work for 7 1/2 hours, you are being paid for time you have not worked.

If you are required to stay an extra hour and this is subtracted from the total time you are at work, you are presumably being paid for eight hours of work.

If you are exempt from these rules, an employer can require you to work as many hours in a day as desired without any increase in pay.

Employees classified as exempt are paid a set amount to perform their job assignment irrespective of how little or how much time it takes.

--Don D. Sessions

Employee rights attorney

Mission Viejo

New Hires Must Pay Union Dues in 30 Days

Q: For part-timers, why wouldn’t the collection of union dues begin after the probationary period is completed, as with health insurance, etc.? And if an employee resigns, wouldn’t he or she be entitled to a refund of dues paid during the probationary period?

--M.M., Winnetka

A: The law does not limit when a union can begin to charge dues to new employees, although there are legal limits on what a union can do if a new hire does not pay.

Under federal law, employees in the private sector can’t be fired for nonpayment of union dues until they have completed 30 days of employment (seven days in the construction industry).

Based on this law, some unions do not ask new employees to join until they have worked 30 days. Other unions attempt to sign up new hires as soon as they report for work.

But these membership practices usually bear no relation to the length of probationary periods. In fact, union contracts have probationary periods of 60 or even 90 days.

To answer your second question, unions rarely refund dues payments to members who resign during their probation periods. There is no law that requires unions to make refunds in these circumstances.

Actually, this is not very different from the practice of health insurance plans, which ordinarily keep payments of resigning employees even if they have never made a claim for benefits.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.