Company usually can't deduct one's overtime from commissions

CAN THEY DO THAT?

November 02, 2005|By CARRIE MASON-DRAFFEN | CARRIE MASON-DRAFFEN,NEWSDAY

I work as a customer service rep- resentative and inside salesman for a distribution company. I don't supervise anybody in the company; I am an hourly employee who earns overtime when I work more than 40 hours a week. But the company subtracts the overtime from my commissions. Is this legal?

Your instincts are right: In general, it's not something that is allowed. If you genuinely qualify for overtime, then you have to be paid that. The company can't take it away just because you earned a commission.

Such an overtime-commission link would be legal only if the company's overtime pay kicked in below the 40-hour legal threshold and if its policy linked commission and overtime. But once you cross that 40-hour watermark, that overtime is yours no matter what.

Matters could get worse for your company if its deductions put you below minimum wage for the week. The company could face overtime and minimum-wage violations. So try to reason with your supervisor. For more information, call your state labor department.

I worked for a church that never paid me overtime because supposedly I was a "salaried" employee. But I am wondering if I was really exempt from overtime.

I didn't supervise anyone. And I spent most of my time performing clerical tasks, such as distributing mail, answering phones and inputting data. I logged a lot of overtime because we didn't have enough help, and I also had to attend after-hours meetings but was not paid for that time.

I need to be sure we are working from the same definition of overtime. As I mentioned previously, mandated overtime kicks in after 40 hours in a week. Just because a company asks you to work a few hours extra in a day, it doesn't have to pay you the premium pay by law - unless that time puts you over the 40-hour mark. And earning a "salary" doesn't automatically disqualify you for overtime. It's one of the greatest fallacies people have about labor law, some experts say.

Your duties largely determine whether or not you are eligible for overtime. And judging from yours, it appears you were owed overtime. Call your state labor department or the U.S. Department of Labor at 866-487-2365.

carrie.draffen@newsday.com.

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