Salesperson Can’t Be Forced to Pay for Product Repairs

Q I am a recreational-vehicle salesman. I am paid a percentage of the gross profit of each vehicle I sell.

After each deal is completed, I am given a voucher stating my pay for that deal. My employer charges me back, at the same percentage, for any repairs that are made after the sale is final and after I’m paid, even though the 30, 60 or 90 days may have passed.

This, in effect, makes me responsible for repairing vehicles as well as selling them. I was hired to sell and have no control over the condition of the vehicles. Is it legal for him to charge these repairs against my future paychecks?

--J.W., Mission Viejo

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A Your employer’s practice appears to be unlawful. The California Labor Code prohibits an employer from requiring an employee to rebate any portion of his wages. Also, California law holds that employees may not be required to act as insurers of their employer. It appears that your employer is requiring you to rebate a portion of your commission as a means of insuring the employer against defects that are discovered in a vehicle after its delivery.

A vehicle dealer may take into account a vehicle’s pre-delivery repair costs in determining the gross profit on the sale of the vehicle from which the salesperson’s commission is determined. Once the vehicle is delivered, however, your compensation cannot legally be reduced to reflect subsequent repairs.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Salaried Get Downtime Pay Q Some of my co-workers and I work for a company as exempt employees. At the time we were hired, we were told we would be paid a monthly salary plus benefits. But when a company project does not consume all of our time, we are told to either take time off without pay or use our vacation time to fill in the week.

It does not seem fair to ask employees to use their vacation benefits for the employer’s benefit. As salaried employees, are we entitled to our salary from the company whether or not the project managers allow us to charge our time to their project?

--G.W., Duarte

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A An employer cannot force exempt workers to take time off without pay or use vacation time when it makes them leave early on any given day. You should be paid for the entire day, even if you worked part of it.

The employer will argue that if it has the power to fire you at will, it also can force you to take these leaves without pay.

You could argue that as long as you are not fired or formally placed on an hourly basis, you deserve to be paid the full promised amount. Some court cases have held that the employer needs to pay workers for the balance of a pay period even when they have missed several days at the company’s direction.

If your boss wants you to be essentially “on call” during your forced leave, your position is even stronger for your claim for compensation.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Jury Duty Is No Vacation Q My company pays for 10 jury duty days per year, but for every day used, an hour is deducted from our earned vacation days. Can they do this?

--N.M., Costa Mesa

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A If you are in a position that is exempt from overtime pay, federal regulations prohibit your employer from deducting your wages for time spent on jury duty. If your employer does deduct pay, it could lose its right to claim that you are an exempt employee. However, your employer may make deductions to offset any fees you receive for jury duty.

If you are a nonexempt employee, your employer can deduct from your pay time spent on jury service.

Regardless of your status as an exempt or nonexempt employee, your employer is probably prohibited from compelling you to use vacation time while on jury duty. Although an employer can regulate when you can take vacation, an employer is prohibited from taking away earned and accrued vacation. Your employer’s actions may be interpreted as taking away vacation time.

I suggest contacting the state labor commissioner’s office and the federal Wage and Hour Division.

--William H. Hackel III

Employment law attorney

San Clemente

Quiet Partner Wants Credit Q I work closely with another person in a partnership-type arrangement. Because my partner is more vocal and I am more quiet, she often takes the credit for our joint work efforts. As a result, I often get less than my share of the credit.

I am proud of our work together and don’t want to hurt the partnership or be detrimental to the team effort. How can I get more credit for my work without disrupting the team harmony?

--S.M., Los Angeles

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A You have legitimate concerns because your partner’s tendency to take credit for your joint work could be affecting your chances for advancement in the company. You need to talk with your work partner about this situation as soon as possible. I wouldn’t worry about disrupting team harmony, since the partnership is already threatened because you feel that your individual efforts are being overlooked.

If your partner values the work team, she should be sensitive to your concerns and needs and respond accordingly. Perhaps the two of you can develop some sort of “contract” that will set up procedures for assigning individual credit for work produced by the partnership.

--Ron Riggio

Director, Kravis Leadership

Institute

Claremont McKenna College