If I’m behind on my draw, could I be sued if I quit?

Essentially I’ve been working for a private company for the past 2 years as an outside sales representative. I’m not salaried nor hourly;I’m paid a draw bi-weekly which equals $35,000 a year. I’ve been offered a salaried position in the medical industry but I’m behind on my draw by $22,000. I’m afraid if I leave I’ll be sued. I might have a case since I’m required by my company to be at my office at 7:00 am and end my day at the office at 6:30 pm or later. Roughly a 11.5 hour day. As an outside sales rep. shouldn’t I be able to make my own hours?

Asked on October 24, 2011 under Employment Labor Law, Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Don't confuse an outside sales rep with an independent contractor. An independent contractor, for the most part, makes his or her own hours (but not 100%; since the company is the client or customer, they can detail or require certain time onsite, as long as the contractor remains largely independent). A outside sales rep who is an employee does most of his or her work in the field, outside the office, but works whatever hours (and would have to come onsite whenever) the company requires.

More basically, while it's not impossible that there has been some overtime violation, if you are an employee but don't quite qualify for the outside sales rep exemption to overtime, that has nothing to do with whether you have to repay a draw against commission when you leave; it *might* entitle you to some unpaid overtime--which, depending on the number of hours, could be significant--but doesn't affect other obligations. If you feel that you may not actually be an "outside sales rep" for overtime purposes, you can confirm the standards and see how they apply to you by going to the Department of Labor website and looking under "wages."

Assuming that the draw you describe is the  typical draw in which it is essentially an advance against yet-to-be-earned commissions, you would have to repay the draw to the extent it is not earned out when you leave. The exception would be if the specific terms and conditions of your employment do not recover it; but unless you have some agreement to the contrary, you would seem to have to repay the $22,000--which means the company could sue you if you do not.


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