Salesperson Exemption
California recognizes and has implemented an exemption for certain salespersons in the workforce. The “outside sales” exemption applies to Employees who are 18 years of age or older and spend more than one-half of their working time away from the Employer's place of business “selling” or obtaining orders or contracts for products, services or use of facilities. Outside salespersons are not required to meet the salary test that applies to the administrative, professional and executive exemptions.

Unlike federal law, California does not consider as “exempt work” duties incidental to the Employee's sales or solicitations, including incidental deliveries and collections. This distinction is particularly important for route salespeople and others who perform many functions other than sales in an average day, such as delivery, repair, and maintenance.

There is also an “inside sales” exemption applicable to Employees covered by Wage Order 4 (professional) and Wage Order 7 (retail) if their earnings exceed one-and-one-half times the minimum wage and more than one-half their compensation represents commissions from a bona-fide commission structure. Please note that this exemption applies to overtime solely, and not to other wage and hour laws (such as meal and rest breaks).

An important point to note is that if the Employer pays a guaranteed draw against commissions, the courts may consider the earnings as salary and not commissions, which would render the exemption inapplicable. Also, because the inside sales exemption is based in part upon the amount of earnings attributable to commissions, those earnings must satisfy the definition of “commissions” under the California Labor Code. Finally, those Employers who would not qualify as “retailers” may be held liable if they do not meet the classification of inside salespersons as exempt qualifies under federal law (known as the “7(i)” exemption).

Private Household Caregivers
This section applies to employees who assist in a person's private home as a caregiver and do not work for a residential care or a private business set up to provide residential care.

If the type of work an employee does is limited to the following, such employee is likely not entitled to overtime pay.

		Showering
		Getting into/out of bed or chair
		Using a toilet
		Bathing
		Assisting in obtaining medical care (but not actually administering care)
		Preparing meals for the supervised person (not the entire family)
		Managing personal finances
		Assisting with other daily activities which can not be performed safely by the person alone

If you perform other tasks besides those above, you may be entitled to overtime pay and you should have a California labor attorney review your case.

Public Facility Caregivers
A public facility is any facility that is not considered a private household. This would include hospitals, houses for the aged, disabled or handicapped, child care centers, etc.

Employees who work in a public care facility are entitled to overtime pay after 8 hours in a day or after working 40 hours in a week, unless the employee works in one of the following occupations:

If you work in a public facility, you will be entitled to overtime after 8 hours in a day or 40 hours in a week unless you are in one of the following occupations:

		Organized Camp Counselors of seasonal camps-- overtime pay is granted only after 54 hours in a week.
		Resident Managers of homes for the aged that have less than 8 beds are not entitled to daily overtime (after 8 hours in a day), but are entitled to weekly overtime (after 40 hours in a week).
		Personal attendants of a not-for-profit organization do not get daily overtime, but do get weekly overtime.

Facilities which house the sick or disabled can institute a two-week period for overtime. That is, the employee does not get overtime until 80 hours are worked in a two-week period. The employee is still entitled to overtime after 8 hours in any day. Employees must agree to such an arrangement prior to starting work under such a schedule. If you are a caregiver in a public facility and are not paid overtime, it is prudent to contact a California labor attorney to review your case.

 

For a Free Case Evaluation, CLICK HERE