If I clock in for 45hrs a week and it’s documented but I’m never paid overtime Bennie I’m a commission sales agent, am I being wronged?

UPDATED: Jan 8, 2019

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If I clock in for 45hrs a week and it’s documented but I’m never paid overtime Bennie I’m a commission sales agent, am I being wronged?

I’m a commission based sales agent that
clocks in 45hrs a week, documented but
I’m never paid overtime, am I being

Asked on January 8, 2019 under Employment Labor Law, Indiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

We can't answer your question simply, because it depends on:
1) Are you an employee or an independent contractor? Some purely commissioned sales agents are independent contractors (they were at companies I worked for), and independent contractors do not receive overtime. If you have other companies you sell for, you are almost certainly an independent contractor. Even if you don't, if you set our own hours and locations(s) where you work, you may be an independent contractor. Here's a helpful link: https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-defined
2) If an employee, are you one who's main job or duty is making sales, and, if so, do you mostly work outside your employer's office (e.g. visiting actual or potential customers; working from home)? If you do, you may well meet the "outside sales employee" exemption to overtime, and if exempt, do not get overtime: https://www.dol.gov/whd/overtime/fs17f_outsidesales.htm
The exact details of your position and relationship to the employer will determine your eligibility for overtime.

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