California employment lawyer

We all have equal rights, or none of us has them.

Overtime: sales exemption

Are you working late into the night and every weekend? Has your employer told you that salespeople never get overtime? Employers act wrongfully more often than you would think. I’ve handled hundreds of cases over the years where my clients’ employers told them that. However, what your boss won’t tell you is that most employees in the state of California are supposed to be receiving overtime pay for their hard work, even if you work in sales.

There is a very limited number of people who are not entitled to overtime. You likely have rights to wages that you didn’t even know you had!

  Making sales away from the office doesn’t mean you have to give up overtime pay.  

It's called "misclassification" when an employer tells you that you are exempt from overtime pay. There are many circumstances where salespeople should be paid.

Does your employer tell you that salespeople never get paid overtime? That’s illegal!

One of the most common disputes regarding overtime pay is a job involving sales. This is because you typically work very long hours and spend the majority of your time on duties which don’t involve the actual practice of selling. Your boss doesn’t want to pay you for that time. But you deserve overtime pay.

You have rights to get overtime pay for your outside sales job.

If you’re engaged in "outside sales," you may not be entitled to overtime. “Outside sales” is when you are regularly away from the employer's business in making sales or obtaining orders for contracts or services. Of course, that means an unfair boss may want to label you an outside salesperson so that you won’t get paid. But making sales away from the office doesn’t mean you have to give up overtime pay.

In Ramirez v. Yosemite Water Company, the California Supreme Court examined whether employees who delivered water bottles to customers were outsides salespeople. Their boss instructed the delivery drivers to sell additional products to the customers while on the deliveries. The employer did not pay the drivers overtime because their “primary duty” was to sell the product, not deliver the water bottles.

  We’ve been extremely successful in recovering significant unpaid wages for sales employees.  

The California Supreme Court didn’t let the company get away with it! When employees perform tasks that are incidental to selling but isn’t actual "selling"—such as deliveries—those employees are not outside salespeople. They deserve to be paid overtime.

We’ve been extremely successful in recovering significant unpaid wages for sales employees who were entitled to overtime pay. If you have a sales job, and you think you’ve been denied overtime pay, call us! We can help!

You have rights to get overtime pay for your inside sales job.

But, what if all your selling is done inside the work or home office? You are likely an inside sales representative. Inside sales representatives typically are there to establish or introduce new corporate products or services to established clients. The customers communicate with an inside sales representative to request orders, quotations, and lead times by fax, telephone, or email. This is different from an outside sales representative, who focuses on bringing new business into the company.

Employers often misinterpret and misapply the inside sales exemption to their workers’ wages. If you are an inside salesperson and earn less than 50 percent of your income from commissions, you have a right to overtime pay!

What should you do if you think you have rights to overtime pay?

If you think you are entitled to overtime you need to begin keeping a log of the hours that you work. Got a late night phone call from the boss or a client? Keep a journal of when the conversation started and ended, with whom you spoke, and the nature of the call.

  If you haven’t been keeping a record, the law says that you can provide a reasonable estimate of your hours worked.  

If you haven’t been keeping a record, the law says that you can provide a reasonable estimate of your hours worked. But, how do you prove that your estimate is reasonable? Go back through your past emails and look at the time and date stamp on the emails. Look at your expense report sheets and see where you traveled to and what you were doing. If you have access to your computer log in times, check to see when your computer was in use. Finally, look at your phone records. All of those late night phone calls should be recorded.

Your memory is probably better than your employer’s recollection, since you actually worked the hours! Reach out to us if you’d like help in figuring out how to estimate the time you worked.

So, am I an exempt employee or not? Do I fit into the sales exemption?

If you ask your boss, it’s very likely that you’ll be told you’re exempt. But my many years of experience have shown me that most people are non-exempt. Exemptions are a hard thing to understand, which is why many workplaces get them wrong. Let us help you find out if you’re owed money!

We can help you fight for justice.

When your employer wrongfully withholds pay that you earned, you can feel hopeless. Employers should not get away with it! By standing up for your rights, you are standing up for yourself. You are also standing up for everyone who has ever suffered the injustice of an employer keeping earned wages.

Please make an appointment for a free consultation in our Newport Beach office. You can contact us by email or phone. We want to help.