SC Scheduling Discrimination South Carolina

[MysticDjinn]

SC Commissioned Sales Question - Unfair Scheduling Practices:

I work for a Harley-Davidson Dealership. I was hired to both sell and market motorcycles on the internet, as well as inside the dealership.

They "classified" me as a Manager, and agreed to pay me $1000 a month in salary, plus 10% commissions on my sales. They schedule me, and treat me as a member of the sales staff. I do not have any employees that answer to me, nor do I have any “supervisor” or “management” duties.

My question is regarding the scheduling practices of the dealership. The sales team (myself included) is required to work from open to close for a 5 day work week. This in itself isn't so bad - the issue is that we are required to work every weekend.

Now there are approximately 50 other employees of this dealership who are allowed a "rotating" schedule. They are Parts, Clothing, Accessories and Service employees. They are allowed to take weekends off on a rotating basis. They are paid an hourly wage – plus bonus for hitting sales goals.

We also have a member of the sales team (I’ll call him “Jim”) who is allowed to work for 3 straight weeks with no days off, then he is allowed a full week off to go home to Florida to see his wife.

I am a single father, and I have repeatedly asked for a change in my schedule to allow me to take off just 2 Sundays per month (in place of working an additional day during the week).

My employer always says “No, everyone works on Sundays” – however this isn’t true. Out of a staff of over 50 people, the 4 salespeople (not including “Jim”) are the only ones kept locked into this schedule.

Since there are so many people working here, and only the 4 of us are prevented from taking a weekend off – is there some violation here?

Thanks!

SC

[Blessed123]

Legally, I do not see a violation unless the scheduling is based on race, color, national origin, religion, or sex, which would make it an EEO violation. http://www.eeoc.gov/facts/qanda.html.

Since you would not be considered exempt as you do not meet the salary requirements (http://www.flsa.com/coverage.html) to start with, depending on your schedule, overtime may come into play. Commission and wages is not my area but the link below has helpful info on sales and commissions. The experts on this board will post more info that will help so hold on.

http://www.dol.gov/compliance/topics...ommissions.htm

[MysticDjinn]

Thanks for your information.

They have told me that I am an "exempt" employee and that I am not to use the timeclock.

Should I be using the Timeclock and recording my hours?

The other sales staff are not paid hourly. They are required to punch the clock, however they are only paid a draw against commision earned.

[Blessed123]

Sales is a whole different ball game that I am not familiar with but you should definitely be tracking your hours, either through the time clock or on your own. You are not exempt from overtime unless "more than half of the employee's earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked." Below is a link to the regs which gives more details in regards to this.

http://www.dol.gov/esa/whd/regs/compliance/whdfs20.htm

[DAW]

Agreed with the other answers. You do not qualify for Outside Sales because you fail the duty tests. You do not qualify for any of the so-called White Collar exceptions because you are not paid at least $455/week.

You must be paid at least minimum wage for all hours worked, period, no exception. For purposes of minimum wage only, you are non-exempt.

As far as overtime goes, I am pretty sure that motorcycles fall under the Auto Dealer exception. Meaning that the employer would be under no legal requirement to pay you overtime. For purposes of the overtime premium only, you are probably Exempt, although it would not hurt to verify this with federal DOL.

The last answer cited the Retail/Service Establishment exception. The employer could use this exception, but if you are already Exempt from the overtime premium, it would make no sense for the employer to choose to do so, and it is their choice.

What is sometimes confusing is that when people say "Exempt", they tend to mean one of the white collar exceptions, which means pay the person at least $455/week and ignore MW, OT, and hours worked. Fine, but there are something like 100 or exceptions in the FLSA law from MW, OT or both, and the white collar exceptions are just maybe 5 of the 100. If the employer can make those work, then of course they will, because those are very pro-employer exceptions. But in your case, that ship has sailed. You have already failed the salary test for those exceptions, and even if you would otherwise pass the duties test, failed is failed. Meaning that the employer must pay you at least minimum wage for all hours worked.

Overtime is different in that Congress in it's wisdom decided that Auto Dealers are special people who deserve special treatment. If Bob the auto salesperson works 50 hours, he must be paid at least 50 hours @ minimum wage, but thanks to Congress does not need to be paid the overtime premium. And if one reads the actual FLSA law, the Auto Dealer exception reads more like a "autos, trucks and farm equipment" exception.

You mentioned time clocks. Yes your employer should be keeping track of your hours worked (and paying you for them). However, nothing stops you from keeping track of your own hours worked at home. A paper notebook works fine. A smart employee would not use the employer's time or equipment to do so. A smart employee would assume that any time they use the employer's computers, phones, fax or copies that the employer finds out.