If you are paid in commission, you may be entitled to unpaid wages for rest breaks. Even if your employer provides breaks, you may be entitled to receive back wages if you are paid only in commission.


Hi, I’m Randall Aiman-Smith , one of the partners here at Aiman-Smith & Marcy. We are always on the lookout for new information about employee and consumer rights that we can pass along to you. And if you’re a salesperson who gets paid through a draw against commissions, the California Court of Appeal has published a new decision about rest breaks that we think is very important, and I want to tell you about it.

First, California law requires an employer to provide a ten minute rest break for every four hours or major fraction, that the employee works. And this is critical, the rest break has to be a paid break. In essence, this new case holds that the employer has failed to provide a paid rest break if the employee is paid by a draw against commissions, and the draw has to be repaid out of commissions later earned. This is true even though the employer actually provides rest break time, and even though the employee actually take time off for rest breaks. The reason this is so is because where the payment to the worker is a draw against commissions and the draw has to get repaid out of commissions, the rest break, even if taken, is not actually a paid break as required by law.

If you’re confused, I’m not surprised. I had to read the case three times to understand it. It’s a complicated issue, but basically, if you are being paid through a draw against commissions, there is a very good chance that your employer is not providing paid rest breaks as required under the law. Remember, this is true even if you actually take time off for breaks.

So, if you are a sales person being paid through a draw against commissions, we will be glad to analyze your pay and commission structure and let you know whether you are being paid and given breaks as required by law. There’s no charge for this consultation and we really want to help.

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