Can an employer require an hourly employee to “clock off” in order to perform commission duties and pay commission only?

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Can an employer require an hourly employee to “clock off” in order to perform commission duties and pay commission only?

Then have the employee clock back in to continue hourly pay. Employee is not an independent contractor.

Asked on December 20, 2012 under Employment Labor Law, California

Answers:

Aryeh Leichter / Leichter Law Firm, APC

Answered 8 years ago | Contributor

No, it doesn't work that way.  An hourly employee must be paid for all hours, which is defined as the time an employee is "suffered or permitted to work" by the employer.  Further, since commissions are considered remuneration, and an employee's regular rate of pay for purposes of overtime compensation is calculated based on total remuneration and total hours worked,  this "commission duty" time must be on the clock.  Please feel free to call (213-381-6557) or email me ([email protected]) if you would like to discuss the matter further.

All the best,

Ari


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