July 2005
WIN AT WORK MONTHLY
A Community Service of SESSIONS & KIMBALL LLP, Employee Rights Attorneys
Win at Work	Employee Rights Update
ILLEGAL DISCRIMINATION Unfair treatment isn’t necessarily evidence of discrimination. Employees have complained to me of all sorts of perceived discrimination in the workplace. “There’s a double standard here.” “He just doesn’t like me, and criticizes me in front of others.” “She acts like a drill sergeant with me, and like a den mother with my co‑workers.” But in evaluating discrimination that violates law, you should be more interested in examining why rather than how it occurs. Unless you can show that the intent of any perceived discriminatory treatment is based on age, sex, race, religion or other categories established by law, it’s not illegal discrimination. Then is there legal discrimination? Yes! Laws don’t prohibit discrimination outside those specified areas. You can be legally discriminated against for your physical attributes, likeability, or for that matter, the color of your shoelaces. Discrimination can be based on absolutely any feature imaginable. But if you intend to claim illegal discrimination, you must know its limitations.	COMMISSIONED SALESPEOPLE A commissioned retail salesperson, sometime referred to as an “inside” salesperson, must earn at least the minimum wage of $6.75 per hour, and may be owed overtime wages. To calculate the hourly wage, choose any pay period and divide the gross income earned by the total hours worked. Hours worked include time spent selling, or any other time spent working, except for unpaid lunches. The calculated hourly wage must meet or exceed minimum wage. Commissioned retail salespeople are not owed overtime if the following criteria are both met: 1) the salesperson earns at least one and one-half times the minimum wage and 2) more than one-half of the compensation comes from commissions. Therefore, if the calculated hourly wage is less than $10.13 per hour, overtime wages are due for any hours worked over 8 per day or 40 per week. Finally, commissioned retail salespeople are entitled to take rest and meal breaks just like any other hourly employee. Michael S. Ahmad, Attorney
Look for our answers to employees’ questions in the “Life and Work Q & A” column of the Orange County Register’s "Business Monday" magazine. E-mail us at info@job-law.com to have your address added or removed from our monthly mailing list. For more employee rights information or for past issues of Win at Work Monthly, click here for our website, job-law.com; here to order our book, Employee Rights in California; or contact our office directly at 23456 Madero, Suite 170, Mission Viejo, CA 92691, (949) 380-0900, (800) 774-7494, info@job-law.com. The Win at Work portion of Win at Work Monthly is from our ongoing syndicated column, which appears in the Los Angeles Times’ “Career Builder Magazine” and elsewhere. Win at Work Monthly is intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should promptly retain the services of an attorney. ©2005 by Sessions & Kimball LLP