Can my employer change my pay from hourly to commission?

UPDATED: Oct 31, 2010

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Can my employer change my pay from hourly to commission?

I am a dental assistant.

Asked on October 31, 2010 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

If  you have a contract defining or specifying how you are paid, the employer will be bound by it. However, apart from that, on a forward-looking basis (i.e. from when they tell of you of the change and forward in time), your employer can absolutely change how you are paid. An employer has discretion to set the hours, wages, terms, and how compensation is determined for its employees. For any work done to date, you have to paid under your then-existing wage structure; the change can only be made prospectively, not retroactively. Also, if you are an employee who would receive overtime, you probably still need to be paid overtime even if your compensation is determined on a commission basis, since the overtime exemptions for commissioned staff apply to individuals like retail sales or outside sales personnel, which you probably are not. Therefore, if you work more than 40 hours in a week, you will need to be paid more for hours over 40.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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