IMPROPERLY CLASSIFIED AS AN INDEPENDENT CONTRACTOR WHILE MAKING SALES

We presently represent a former sales employees improperly classified as an independent contractors. If your hours are set by the company paying you, that is a factor in determining you are an employee. Also, having to work on the employer's premises is a factor consistent with employment. If you have to come to work as required by the employer, you are not given any sales leads that is also characteristic of the type of control an employer exerts over employees. However, some of the most important factors in determining if someone is an independent contractor include:

• Is the job the type of job required in order for the company to run their business it may be employment
• If the employee does not hold a license that enables them to do the job or service it may be difficult to claim they are an independent contractor
• If the employee is paid an hourly rate that may mean they are not an independent contractor
• If the employee primarily works for the employer and does not have a separate business providing the services at issue the situation may be employment

Additionally, if you did not receive proper itemizations on your paychecks explaining why you were paid, there are concerns you were not paid commissions properly on your sales. To whether you did not have a proper contract for commissions, we would like to hear from you. The California Labor Code requires that the terms of employee commission agreements be in writing.

Call us at (323) 525-1600.

There may be labor violations when sales people are not paid minimum wage. The exception is generally for outside sales people. Questions whether minimum wage is averaged daily, weekly, or by paycheck are issues you must consult an experienced wage lawyer on.

One of the biggest problems our wage attorneys see, however, are sales people who are not paid overtime. There are a lot of situations in which people are classified as sales people, but they are not trying to make sales more than half of the time. Exactly how long is spent on sales is a factor in determining whether sales people may be exempt from overtime. The amount sales people actually earn also matters. All of these issues are highly technical, and beyond the scope of this article. If you are ready to sue for unpaid overtime or commissions you need to call our office and be ready to answer our qustions.

In order to assess whether you are an independent contractor, consider whether:

1. You work on the employer's premises
2. You use the employer's equipment to do your work
3. The employer sets your schedule (start and stop times and number of hours per day)
4. You are disciplined if you declined to work as requested by the employer
5. You do the normal business of the employer is engaged in. For example, you are not coming in to repair a piece of equipment that rarely breaks, or providing IT assistance when needed

Improper treatment of an employee as an independent contractor leads to several remedies for the employee. These remedies include:

1. A monetary fine to the employer for improperly classifying an employee as anindependent contractor
2. Back pay at minimum wage for ever hour worked for each pay period the employee's commissions paid to them did not equal minimum wage for that pay period
3. Potential overtime and double time pay
4. Fines to the employer for not properly giving employees written sales commission contracts
5. Penalties payable to the employee for the employer not properly itemizing why the employee was paid what they were paid on their paycheck

We believe many companies attempt to get its sales people to sign binding arbitration agreements in order to prevent a class action now that the issue of their sales people being improperly classified as an independent contract has arisen. If you have questions about whether you should sign a binding arbitration agreement, please contact us at (323) 525-1600.

Our experienced labor lawyers can be reached at (323) 525-1600 if you have any questions about being improperly paid, or the potential class action for misclassifying their salespeople as independent contractors.