If you are on a salary/commission basis does your employer have the right to not pay minimum wage?

UPDATED: Nov 30, 2010

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If you are on a salary/commission basis does your employer have the right to not pay minimum wage?

At the time of my hire I was told that I would be paid $4 an hour plus commission, but if I didn’t make enough commission that I would be paid minimum wage. When I got my check I got paid $5.90 an hour. I asked him about it and he said that he is paying on a quarterly basis. I then asked if I quit if he will pay the difference, he said I don’t know. Is this legal?

Asked on November 30, 2010 under Employment Labor Law, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

You should repost your question with additional information, since the rules vary by your position. As a general matter, the only types of sales jobs--which I assume is what you have, since you mention a commission--which are exempt from the wage and hour requirements are (1) outside sales reps, which means people who spend the vast majority of their time physically outside their primary place of business, selling; and (2) certain qualified retail sales reps (e.g. the folks who help you in an electronics or clothing store). There are also exemptions related to a very few specific industries. Other than that, even if someone makes a commission, they have to be paid at least minimum (plus commission) and are eligible for overtime (if not otherwise exempt as an executive, etc.).

The rules for each exemption are different; if you can provide more detail as to what your job is, it should be possible for someone to answer. In the meantime, if you go to the U.S. Dept. of Labor (DOL) website and look under "wages and hours," you can find some helpful information.

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