In a commission-only sales position, can an employer require employees to clock in-and-out and work set hours with no hourly compensation?

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In a commission-only sales position, can an employer require employees to clock in-and-out and work set hours with no hourly compensation?

I work a commission only sales position, no hourly pay. Can the employer require employees to submit to a set working schedule and clock in-and-out if each employee is considered an independent contractor? Also, can the employer change change an employee’s job description and status sporadically without notice or explanation to the employee (i.e. move from one position to another several times within a month and change employment status from independent contractor to employee then back to independent contractor without notice)?

Asked on September 9, 2011 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

1) Can an employer require an employee, even one paid by commission, to work a set schedule? Yes--employers can set terms and conditions of employment, including hours worked.

2) Can an employer change an employee's duties, job description, etc. at will, without prior notice? Yes--again employers determine who works in what job, doing what.


3) If someone is truly an independent contractor, the employer cannot require the contractor to work a set schedule--that degree of control is inconsistent with being an independent contractor.

4) If the person is an independent contractor, then the employer can't change duties, position, title, etc. at will--those are determined by the contract (including oral or verbal agreement) between employer and contractor.

In short: an employer can treat someone like an independent contractor, or it can treat them like an employee and exercise tight and constant control--but it can't do both. Whether someone is an independent contractor or employee depends on the nature of the relationship, and if a "contractor" is treated like an employoee, subject to tight employer control, the contractor is really an employee regardless of what he or she is called--and that means should receive benefits, have withholding, etc.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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