Home » Our Blog » Exploring Overtime Expansion: Inside Sales Employees
back to the top

Exploring Overtime Expansion: Inside Sales Employees

Share on Facebook Share on Twitter Share on LinkedIn Share on Google Plus Share through email Print it More share options

This blog is part of an ongoing series that answers questions most frequently asked during Paycom’s free webinar covering overtime expansion.

The Department of Labor’s new rule is expected to extend overtime protections to 4.2 million white-collar workers beginning Dec. 1, 2016. Understanding how it impacts sales employees with complex pay structures is the key to maintaining compliance and mitigating risk under overtime expansion.

Do salespersons’ commissions count toward the threshold?

    • The salary requirements of the regulation do not apply to the outside sales exemption.
    • Inside sales employees can be paid on commission, in whole or in part, and be exempt from overtime if they meet three criteria under Section 7(i) of the Fair Labor Standards Act (FLSA).

Inside sales details

Workers who engage in inside sales can be exempt from overtime under Section 7(i). To qualify for this exemption, three conditions must be met:

    • Workers must be employed by a “retail or service establishment.”
    • The employee’s regular rate of pay must exceed one and one-half times the applicableminimum wage for every hour worked in a workweek (the equivalent of 168 consecutive hours, or seven consecutive 24-hour periods) in which overtime hours are worked.
    • More than half the employee’s total earnings in a representative period must consist of bona fide commission payments.

While the term “retail establishment” may conjure images of brick-and-mortar shops and boutiques, the law’s definition is not so narrow. Under the FLSA, a “retail or service establishment” is defined as “establishments, 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale; and is recognized as retail sales or services in the particular industry.”

Breaking down ‘bona fide’

When it comes to employment law, the devil is in the details. This is why we need to expound on what constitutes “bona fide commission payments,” according to the FLSA.

The law recognizes certain circumstances under which payments to employees are not considered part of a “bona fide” commission plan and, therefore, would not count toward the last requirement of the exemption. According to a 2006 administrative opinion written by Paul DeCamp, then the wage and hour division administrator for the U.S. Department of Labor, “A commission rate is not bona fide if the formula for computing the commissions is such that the employee, in fact, always or almost always earns the same fixed amount of compensation for each workweek (as would be the case where the computed commissions seldom or never equal or exceed the amount of the draw or the guarantee).”

This can be a complicated matter. Consulting legal counsel would be your best bet to ensure that your commission-based plans for sales representatives qualify as “bona fide” under the law and count toward your inside sales employees’ exemption from overtime.

For additional information on overtime expansion and how it may impact your organization, stay tuned to the Paycom Blog. For additional resources, check out the Paycom Overtime Expansion Calculator or attend our free webinar.

The content of this blog is intended to keep interested parties informed of legal and industry developments for educational purposes only. It is not intended as legal opinion or tax advice and should not be regarded as a substitute for legal or tax advice.

Sources:

U.S. Department of Labor, Wage and Hour Division: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees – Final Rule

U.S. Department of Labor, Wage and Hour Division: Fact Sheet #17F: Exemption for Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

U.S. Department of Labor: FLSA Overtime Security Advisor: Compensation Requirements

U.S. Department of Labor, Wage and Hour Division: Fact Sheet #20: Employees Paid Commissions By Retail Establishments Who Are Exempt Under Section 7(i) From Overtime Under the FLSA

U.S. Department of Labor, Wage and Hour Division: FLSA Hours Worked Advisor

U.S. Department of Labor, Wage and Hour Division, Opinion Letters – FLSA: FLSA2006-33

U.S. Department of Labor, Wage and Hour Division, Opinion Letters – FLSA: FLSA2006-9


Amy Double

by Amy Double


Author Bio: Amy, a tenured professional in sales and marketing with over 10 years of experience, is dedicated to creating content focused on helping organizations achieve their business goals. As an experienced writer, Amy is committed to researching and blogging about topics that affect businesses across multiple industries, including manufacturing, hospitality and more. Outside of work, Amy enjoys reading, entertaining and spending time with family.

reverification

Best Practices for Utilizing Section 3 of the Form I-9

Share on Facebook Share on Twitter Share on LinkedIn Share on Google Plus Share through email Print it More share options

Best Practices for Utilizing Section 3 of the Form I-9

Employers are used to filling out Section 1 and Section 2 of Form I-9 because it’s required for every employee. However, Section 3 – otherwise known as the reverification process– can be a bit mystifying.

Who should be reverified?

Employees with expiring employment authorization or documentation should be reverified to ensure continued authorization to work in the United States. The need for reverification is determined by looking at the List A and List C documents that were presented when the I-9 was initially completed. The work authorization expiration date entered by the employee in Section 1, if any, also should be taken into consideration.

When should the reverification process be completed?

The reverification process should be completed prior to the expiration date of the employee’s authorization or documentation. The expiration date is found in two places: the date provided by the employee in Section 1, and the date recorded under List A or List C in Section 2. If these dates conflict, employers should use the earlier date to determine when reverification is necessary.

The United States Citizenship and Immigration Services (USCIS) recommends reminding employees that their documentation will expire at least 90 days ahead of the expiration date. This gives them time to present a List A or List C document or receipt showing continued work authorization. Paycom’s Document and Task Management system helps to ease the burden on employers by providing reminders 90 days prior to an employee’s reverification date.

When should the reverification process NOT be used?

Knowing when you cannot reverify an employee is important, too. U.S. citizens and noncitizen nationals should not be reverified. Additionally, lawful permanent residents should not be reverified if they provide a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. An employee’s citizenship status is found in Section 1, as well as at the top of Section 2. Also, List B documents – even if they expire – should not be reverified.

How do you complete Section 3?

To complete Section 3, simply examine the unexpired documents presented by your employee to determine if they appear to be authentic and relate to your employee. Then, record the document title, document number and expiration date, if there is one. Lastly, sign and date this section. You must use Section 3 from the most recent Form I-9, even if the employee’s original form is an older version.  Likewise, if you previously have completed Section 3 for the employee, you should use Section 3 on a new version of the form and attach it to the employee’s original I-9.

 Other instances in which you can use Section 3

Employers also may complete Section 3 when an employee is rehired within three years of the date that the Form I-9 was originally completed. To complete Section 3 for rehires:

  • Confirm that the original I-9 relates to the employee.
  • Determine if the employee is still authorized to work or if reverification is required by reviewing Section.
  • Enter the date of rehire in Section 3 if the employee’s work authorization is still valid.
  • If expired, request the employee’s valid List A or List C document and complete a Section 3 reverification.
  • Sign and date Section 3.

 

Name Changes

You also can use Section 3 to record when your employee has a legal name change. You are not required to update Form I-9 for name changes. However, the USCIS recommends maintaining correct information on an employee’s Form I-9. Similarly, you are not required to request documentation of a name change from an employee, but it is recommended in order to be reasonably assured of your employee’s identity if the government ever asks to audit the Form I-9.

Paycom’s Document and Task Management solution automates employment verification from within the Paycom system to help ensure compliance and reduce your exposure to audits and penalties from Form I-9 violations. Employees and employers can complete the Form I-9 online, including Section 3, utilize electronic signature verification, and securely store completed Form I-9s and supporting documentation within the Paycom system.

Tags: , , ,
Posted in Blog, Compliance, Document Management, Featured

Alyssa Looney

by Alyssa Looney


Author Bio: As a compliance attorney for Paycom, Alyssa Looney monitors laws, rules and regulations to ensure that the Paycom software is up to date, specifically regarding immigration law and state law developments in the Western United States. She holds a JD and an MBA from Pennsylvania State University, as well as a bachelor’s degree from Texas A&M University. Outside of work, Alyssa enjoys cooking, being active, playing with her puppy and exploring Oklahoma City.

May the 4th

Disturbance in Your Workforce? May the 4th Be With You

Share on Facebook Share on Twitter Share on LinkedIn Share on Google Plus Share through email Print it More share options

A short time ago in an employee suggestion box not far, far away, this note from a disengaged employee was discovered.

Dear Management,

Being a real trooper, I’ve faithfully served this empire for many parsecs. But lately, morale here is in the trash compactor. I’m close to “storming” out of here! Here’s why:

  • We don’t feel valued. It’s challenging to work for someone who acts like a dictator. (The black cape? A bit much.)
  • We want a comfortable working environment. These uniforms don’t exactly help. (I have to plan bathroom breaks 30 minutes in advance.)
  • We want to contribute, but we’re afraid the boss will choke us from across the room if he doesn’t like what we say. A little two-way constructive feedback could make a death star-sized difference. 
  • I find our lack of training disturbing. With the literal universe at our fingertips, why do we not have an online learning management system?

A disengaged staff is a real phantom menace. Don’t let this happen; awaken your workforce today with our “What Employees Want” toolkit to help you keep the force in your workforce as strong as possible.

Tags: , , , , , ,
Posted in Blog, Employee Engagement, Featured, HR Management, Learning Management, What Employees Want

Rod Lott

by Rod Lott


Author Bio: As Paycom’s Creative Services Manager, Rod Lott brings more than two decades of experience in marketing, advertising, branding and journalism. A published author and a graduate of the University of Oklahoma, he has worked with such brands as Blue Cross Blue Shield, Sonic Drive-In and OU.

Paid Family Leave Program

New York to Implement Nation’s Most Comprehensive Paid Family Leave Program

Share on Facebook Share on Twitter Share on LinkedIn Share on Google Plus Share through email Print it More share options

New York to Implement Nation’s Most Comprehensive Paid Family Leave Program

Private employers in the state of New York will soon be required to provide up to 12 weeks of paid family leave. The new law will apply to all employees of employers covered by the state’s worker’s compensation law and will be completely employee-funded via payroll deductions. Public employers are permitted to participate by opting-in to the program.

Growing Trend

These types of “paid family leave” laws continue to gain momentum. Three other states (California, New Jersey and Rhode Island) provide workers with partial pay during parental leave. Some cities have even joined in on the trend. San Francisco passed a paid family leave program in 2016, and Washington, D.C. also recently approved one that will take effect in 2020.

New York lawmakers championed this law as a pivotal step in the pursuit of equality and dignity in both the workplace and home. “New York enacted the strongest paid family leave plan in the nation to ensure that no one has to choose between losing a job and missing the birth of a child, or being able to spend time with a loved one in their final days,” said New York Governor, Andrew Cuomo, upon passage of the law.

Employee Eligibility

The New York legislation originally passed in April of 2016, but the obligations for employers and employees were announced just recently.

Beginning January 1, 2018, the state’s paid family leave program will provide employees with employment protection and partial wage replacement if they spend time away from work to:

  1. bond with a child (including fostering or adopting)
  2. help relieve family pressures when someone is called to active military service
  3. care for a close relative with a serious health condition

A “close relative” as defined under the law includes a spouse, domestic partner, child, parent (including in-law), grandparent and grandchild. An employee must be employed full-time for 26 weeks, or part-time for 175 days to be eligible for a paid family leave benefit. An employer may permit an employee to use vacation or sick leave while on leave, but may not require its use.

 Employer Impact

The complete 12-week benefit will not be implemented fully until 2021. The amount of paid family leave and the percentage of the employee’s salary paid will be realized over four years:

 

Year Weeks
Available
Max % of
Employee Salary
Cap % of State
Average Weekly Wage
1/1/2018 8 50% 50%
1/1/2019 10 55% 55%
1/1/2020 10 60% 60%
1/1/2021 12 67% 67%

 

Employers will be required to purchase a paid family leave insurance policy or self-insure. The employee will pay the premiums of the policy via payroll deductions, beginning July 1, 2017.

For more information about the phase-in process, calculation of the Average Weekly Wage, or general information on the program, visit the New York paid family leave website.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues problems.

Tags: , , , ,
Posted in Blog, Employment Law, Featured, Pre-Employment, Talent Acquisition, Talent Management

Jason Hines

by Jason Hines


Author Bio: Jason Hines is a Paycom compliance attorney. With more than five years’ experience in the legal field, he monitors developments in human resource laws, rules and regulations to ensure any changes are promptly updated in Paycom’s system for our clients. Previously, he was an attorney at the Oklahoma City law firm Elias, Books, Brown & Nelson. Hines earned a bachelor’s degree from the University of Central Oklahoma and his juris doctor degree from the Oklahoma City University School of Law, where he graduated cum laude. A fan of the Oklahoma City Thunder, Hines also enjoys exploring the great outdoors with his wife and daughter.

X

Learn more about Paycom

  • Are you a current Paycom Client?

    Yes

    No

    • Talent Acquisition

    • Time & Labor Management

    • Payroll

    • Talent Management

    • HR Management

  • Subscribe me to Paycom's newsletter.

*Required

We promise never to sell, rent or share your personal information with a third party unless required by law. By submitting this form, you accept our Terms of Use and Privacy Policy.