Legal Question in Employment Law in California

I am employeed with an Cal. based RV Sales Business. I receive a payroll check for min.wage and commissions. I have been told that I don't get OT, DT, PTO, Vac. Time or Sick Pay because I am considered contract labor. I am covered under the company's health insurance plan and I pay payroll taxes as does the employer. Can I really be considered Contract Labor and not an employee?


Asked on 8/19/10, 1:44 pm

3 Answers from Attorneys

Under the facts you describe, you are absolutely not contract labor. You couldn't be more of an employee. However, that doesn't mean you are entitled to all the pay and benefits you list. Nothing requires an employer to give you PTO, vacation or sick pay (unless you work in San Francisco which has a sick pay ordinance). I am not sure if motor vehicle sales people are exempt from OT and DT, but I don't think so. You should contact the state Dept. of Industrial Relations, Division of Labor Standards Enforcement about that.

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Answered on 8/24/10, 1:50 pm
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

I don't know your job description, but if it is what I imagine, where you are required to be at the dealer or lot, selling RV's, and have to work as scheduled, you most likely are an employee. However, you may be exempt from overtime if more than half your wage comes from commissions and are paid at least one and a half times the minimum wage of $8.00 per hour. This means you must be paid at least $12.00 and receive half your compensation from commissions.

There is no law that requires employers to pay employees vacation or sick time. However, if the employer offers these benefits to all employees and they have misclassified you, you may have a legal claim due to the misclassification.

Consult with an experienced employment law attorney in your area to review your case and determine if you have any legal claims.

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Answered on 8/24/10, 2:09 pm
Terry A. Nelson Nelson & Lawless

No. You are an employee entitled to enforce the wage/hour rules. You can file a claim with the Labor Commissioner for unpaid compensation, OT, interest and penalties. You can hire an attorney to help, and can recover those fees if you win. If the amount in question is enough to justify hiring an attorney, especially if others at the store also file claims and join you, feel free to contact me for that legal help.

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Answered on 8/24/10, 4:34 pm


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