California Attorneys for Salesperson Misclassification Disputes

What Are the Requirements for a Salesperson Exemption?


A professional exemption misclassification violation is just one of many types of unjust or prejudicial treatments employees face on the job and that we fight in court. For more about our Employment Law legal services, please see our “California Employment Law Attorney” page. Or for other types of employee work-related issues we fight for our clients, see the links to the right.

Outside Salesperson Exemption
An outside salesperson exemption is fairly straightforward.  The employee must meet ALL of the following requirements to fit the exemption:

  • Must 18 years of age or older;
  • Customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities.  
  • “Outside sales activities” does not include: time spent making sales by mail, telephone or the internet from a fixed location or time spent on collection and deliveries.

Commission Pay Exemption
The employee must meet ALL of the following requirements to fit the exemption:

  • Earns a base salary of at least one and one-half time the minimum wage (at least $13.50 per hour); and
  • Employed in either the “retail or mercantile industry” (covered by Wage Order 7) or in a “professional, technical, clerical, mechanical, or similar occupation” (covered by Wage Order 4); and
    • Earns more than 50% of his or her total compensation in each pay period from bona fide commissions (the employer cannot disguise compensation unrelated to sales as a commission); and
    • The salesperson’s primary duty must be to make “sales,” or obtain orders, or to obtain contracts for services.
  • This exemption applies only to overtime pay. The salesperson is still entitled to other benefits, including meal periods and rest breaks. It is also important to note that if the employer pays a guaranteed draw against commissions, the court may consider the commission a salary, which would render the overtime exemption inapplicable.

Highly Compensated Jobs

Federal, but not California law, provides for an exemption where the annual compensation is at least $100,000 (determined by evaluating base salary, commission, and non-discretionary bonuses) AND if the job customarily and regularly performed one or more identifiable executive, administrative, or professional functions as described in those categories, the employee may be considered exempt.  This means that employees who are based in California, but who spend significant time working outside of California, may qualify for this exemption during the time they work outside of California.  Excluded from this category are “blue collar” workers, police officers, firefighters, paramedics, EMTs, and other first responders, no matter how much they are paid.  This exclusion applies, outside of California, as long as the job doesn’t meet the tests for executive, administrative, or professional exemption.

Are You a Misclassified Salesperson? We Can Help.

The law firm of Venardi Zurada LLP provides free initial consultations for misclassification employment issues throughout the San Francisco/California. We are experienced employment lawyers  who fight hard for our clients.  If we are able to take your case, we pay all litigation costs. We only get paid our costs and attorneys’ fees if you get compensation.


 

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If you are an employee who feels their rights have been violated, or you need help negotiating or reviewing your employee contract, please call to speak to one of our expert employment law attorneys at (935) 937-3900 or submit the form to the right.

When litigation or mediation is involved, and we are able to take your case, there is never any fee or expense to you of any kind until you get paid! That means we pay all litigation costs which you will not be required to pay back, and we only get paid if you get paid.

We have four offices to serve you in Oakland, Orinda, Redding and Chico, and serve clients throughout the entire California including the entire Silicon Valley and throughout California.

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