Wednesday, 12 September 2018 14:51

ASA’s Attorney Discusses Overtime Laws

Written by




Farrington continued to describe another applicable exemption for establishments that do not derive 50 percent of its revenue from selling vehicles. Employees are exempt from overtime if the following three conditions are met: They work for a retail establishment, their regular rate is more than 1.5 times the federal minimum wage, and they are paid primarily (more than 50 percent of their earnings) by commission.


A retail establishment is considered such under FLSA if 75 percent of its income is derived from retail sales and sales made to the general public. In a collision shop, this means individual customers, even when the insurance company is paying.


The three common types of non-retail income are income from work on heavy trucks (16,001 pounds or more) or specialized equipment; income from fleet work, where work is done for a fleet customer pursuant to a contract or agreement and where the customer gets a fleet discount; and income from sales for resale, in which a dealer engages a shop to refurbish a used car that the dealership then sells, or a dealership farms out its body work to a body shop. In each case, income to the shop is non-retail. If these types of income constitute more than 25 percent of the business’s income, it is not eligible for the exemption.


Farrington provided several examples of how these requirements can be analyzed. He also explained the benefits of drawing against commission.


He warned, “The danger is if the draw is so high that the employee never gets commission. Then, the courts will determine that is a salary, not a commission. For example, techs paid on commission of 40 percent of labor draw $700 per week. Commissions are settled at the end of the quarter. At the end of the first quarter, employees generated $25,000 in labor charges and have therefore earned $10,000 in commissions at 40 percent. The employee has drawn $9,100 ($700 x 13 weeks), so at the end of Quarter 1, the employees get another $900 in excess commissions above the draw.