Salespeople Pay Price for Past-Due Accounts

Q I’m a commissioned sales representative, and my company has implemented a new policy that seems very unfair.

Commissions on all accounts due past 90 days are deducted from the salesperson’s check. There is a chance to earn the money back if it is collected before the account becomes 120 days past due.

After this time, even if the company collects the money, it is not returned to the salesperson. Unfortunately, it is common in our industry for customers with large accounts to pay after 120 days.

Is this new policy legal?

--G.F., Costa Mesa

A The lawfulness of such a policy depends upon whether and how it is written.

The basic rule is that an employer may not take away commissions once they have been earned. But an employer is free to establish reasonable conditions before a commission is earned.

For example, if your company has a written policy providing that commissions may be advanced but not actually earned until payment is received by the company, or that no commission will be earned if the account goes past 120 days, it would be legal.

Some employers have these kinds of policies to provide an incentive for the sales representative to see that the customer actually pays for the goods sold.

Also, a company may reasonably conclude that if an account is more than 120 days delinquent, the cost of collecting and the interest value of the delinquent payment may exceed the profit on the transaction, thereby negating any justification for paying a commission.

On the other hand, if your employer has a policy--in writing or otherwise--that simply says commissions, once earned, may later be reversed if the account becomes delinquent, it would likely be held to be an unlawful forfeiture of wages earned.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Value of College Degree

Is Up to the Employer

Q I have been working for over a year in my current job. I have a degree from a well-respected college.

Recently, I found out that my company has been hiring employees without college educations to do jobs similar to mine. Now, I have learned that two of these co-workers are being paid more than I am.

I am only 25, the youngest one in the company, although my past experience is more impressive. Should I confront my employer about my knowledge of other salaries? Do you think I have a reason to be concerned?

--C.W., Los Angeles

A The fact that others without college degrees have been hired to perform the same job as yours indicates that possessing a college degree might not be an important requirement for the position.

In that case, it might be reasonable that the other workers are paid more if they have more relevant experience or if they are outperforming you. You say that your past work experience is “more impressive,” but the crucial question is whether your previous experience, and theirs, is relevant to your current job.

Regardless of the issue of experience and qualifications for the job, you are feeling that you are being unfairly compensated. You need to discuss this with your employer, who can explain how compensation is determined and what the critical factors are.

If you still feel you are being treated unfairly, you can ask for a raise, or you can start looking for another job that may be a better match for your education, skills and experience.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Government Jobs Have Minimum-Wage Rules

Q My wife, who works part time for a city public library, was told that the city could pay less than minimum wage because it is a city.

Is this true? If so, why would a city government be exempt from paying minimum wages to part-time help?

--D.R., Escondido

A Unfortunately, it appears that your wife has been somewhat misinformed.

It is true that those employed directly by the state or any city, town or municipal government are not subject to California’s minimum-wage requirements. However, these same state and local government agencies are subject to the minimum-wage requirements of the federal government’s Fair Labor Standards Act, with certain limited exceptions.

Since Sept. 1, 1997, the federally mandated minimum wage has been $5.15 per hour.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

50-Hour Week With No OT Bugs Programmer

Q I am a computer programmer for a medium-sized software development company. I have no management responsibility, but tight schedules keep me working about 50 hours per week.

My time sheets accurately reflect the number of hours I work, yet overtime is never awarded. When I accepted the job, I agreed to work for a fixed amount of money to be paid biweekly.

Is this legal?

--J.J., Irvine

A Generally, computer programmers who perform work that requires theoretical and practical application of highly specialized knowledge in computer systems, analysis, programming and software engineering do not get overtime compensation.

In 1990, a law was passed that established a professional exemption from overtime rules for these workers. They still have to show they are fulfilling such functions most of their time in order to be exempt.

Aside from laws that govern overtime, consider your employer’s promises. Did the company tell you that you would not be working so many hours? Do the math and show them how little you are earning per hour with so many work hours.

Appeal to their sense of fairness. Show them what your peers at other companies earn. Ask for a raise.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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 [email protected]. 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.