Frequently Asked Questions About Recovering Lost Wages and Overtime for Retail Workers and Sales Agents

Have questions about your legal matter and are afraid to ask? If so, head on over to our FAQ section in which we tackle a variety of important topics that matter to you. Find answers to questions regarding car accidents, medical malpractice, unpaid overtime, and a variety of other legal subjects that may be affecting you. 
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  • I perform both inside and outside sales duties as part of my job. Am I exempt from overtime?

    These days, many people turn to online resources when they have a question. This first, information-gathering step is important for helping you understand your rights and what to do next, but when it comes to employment law, it often creates more questions than it answers. As a sales representative, you probably learned a lot about inside sales versus outside sales and what it means for your paycheck when you turned to Google for answers, but still it may not be entirely clear where you fit. As you learn more and run into more detailed questions, it’s time to consult directly with an attorney who can help you analyze your concerns more deeply.

    No Easy Answers for Sales Representatives Who Wear Many Hats at Work

    In truth, sales representatives perform a number of duties as part of their jobs, and these job duties don’t always fit neatly into one classification status or the other. For some employees, who split their time at work between and inside and outside sales, it can be extremely difficult to determine if you’re even eligible for overtime pay without a more thorough review with a legal guide.

    Holding Employers Responsible for Paying Appropriate Wages and Overtime

    While it’s simple enough to ask an employee to perform multiple duties, it isn’t always simple to make sure that employees are being compensated appropriately when employers ask them to step outside the bounds of their stated job duties. If you believe that there may be a problem with how you are paid overtime as a sales representative, or if you simply have questions about your rights, don’t hesitate to call or email our experienced team today for a thorough review of your concerns and more information about taking action.

  • A quarter of what I earn from my New York retail job comes from commissions. Does this mean that my employer can classify me as exempt?


    Under New York law, exemptions for retail employees are treated somewhat differently than exemptions for low-level workers in other industries (energy, medical services, restaurants, etc.) That's because many, but by no means all, retailers pay at least some of their employees on a commission basis in addition to a regular hourly salary. Under this law, a retail employee can be classified as exempt only if two conditions are met:

    1. Her pay rate including overtime amounts to at least $10.87 per hour (1.5 times the current federal minimum wage); and
    2. More than half of her total wages during any representative period consists of commissions.

    As you can guess, crafty employers can make hay with that “representative period” wording above. In a good week, you may derive 50 percent of your pay from commissions, but that may even out to 25 percent over the course of a month or year. Your employer may be able to classify you as “exempt” based on what turns out to be a very unrepresentative time period; and this exemption excuses management from having to pay you extra for overtime.

    Of course, many retail stores don't even try to adhere to New York state law when classifying employees, which is how so many minimum-wage shelf-stockers—with no chance of earning any sort of commissions—wind up as “exempt.”

    Questions? Call the experienced overtime attorneys at Kennedy Hodges LLP for a free consultation! We accept clients nationwide. One call to 888-449-2068 can get you on the road to recovering what you owe from the New York back wages cheaters you worked for. Not only can we work to get you the back pay you deserve, we can ask for a fine to be levied against your New York employer caught violating U.S. labor laws.

  • I am an employee at a car dealership and my boss does not pay me overtime because he says I am exempt. How do I know if this is true?

    Just because your employer tells you that you are exempt from receiving overtime does not mean that it is true. Many employers purposely tell employees that they are not supposed to receive overtime pay and, as a result, your hard-earned wages end up right back in your boss’ pocket.

    This is not only unfair, but it is also illegal. The wage and overtime laws state that non-exempt workers must be paid overtime pay for every hour over 40 that they work in a workweek.

    There are only certain types of employees that are truly exempt from receiving overtime. This can include certain executive, administrative, professional, or outside sales employees. However, it is difficult to fall into one of these non-exempt categories.

    The law is clear: If you put in extra hours above 40 in a workweek, you should get extra pay for each one of those hours. It doesn’t matter if you are a salaried employee, blue-collar or white-collar worker. You must be paid premium pay for overtime hours if you are a non-exempt employee. The Department of Labor estimates that almost 90% of workers are eligible to overtime pay.

    If you believe you should be paid overtime pay and your boss refuses to pay it you should contact our employment lawyers to start a free case review with our employment lawyers today at 1-888-449-2068.

    Read More: CarMax sued for alleged overtime misclassification of California car buyers

  • I am a commissioned employee, but my employer refuses to keep track of my hours and makes me count the tips that I receive as part of my commission. Is this allowed?

    No. As a commissioned employee, you are not required to consider the tips that you receive as part of your commission. That money is strictly for you, and it also does not need to be shared with anyone else, according to the Fair Labor Standards Act.

    As for keeping a record of the number of hours that you work, the Houston overtime lawyers in our office strongly encourage all employees - commissioned and non-commissioned - to keep track of their own hours. However, the FLSA requires employers to keep track of these hours, too.

    Not keeping track of hours or counting tips towards commissions can cause your commission and overtime to be miscalculated, which can mean that you could be missing out on pay that you rightfully earned.

    If you are a commissioned employee in Texas concerned about overtime pay, you should be looking at your rate of pay and whether or not it adds up correctly to ensure that you are making minimum wage. According to the FLSA, your regular rate of pay must be equal to or more than one and a half times the federal minimum wage of $7.25 for each hour worked over 40. If your employer does not keep track of your hours worked, then you may not be receiving the overtime that you deserve.

    Still have more questions? Call 888.449.2068 today. The lawyers at Kennedy Hodges will provide you with a free copy of Ten Biggest Mistakes That Can Hurt Your Wage and Overtime Claim. You also can fill out this online form, and an attorney will contact you immediately to schedule a free consultation.

  • I am a cashier and work more than 40 hours a week but I am not paid overtime. Is this legal?

    If you are a cashier, you are considered an hourly, non-exempt employee, which means you should receive time-and-a-half for any hours over 40 in a workweek. If you do not receive overtime pay, this is a violation of the wage and hour laws and you may have a wage claim against your employer.

    Whether you are a cashier, bagger, janitor or a produce employee you are usually eligible to be paid overtime.

    Kennedy Hodges has represented workers in all industries and we have found that low-wage workers are frequently taken advantage of by employers who try to cheat them out of their federally mandated overtime pay. Most workers simply are unaware of the labor laws and miss out on their due wages.

    If you are unsure if you are paid correctly, send us a contact form to tell us about your case or contact us toll-free at 1-888-449-2068 to start a free case review. Our employment lawyers can determine your overtime eligibility status with a quick review of your job duties and how you are paid.
    Read more: The 15 most popular jobs in America: If you work in these industries, make sure you are paid correctly.