Observations from real life...

[EarthMother01]

What is the name of your state (only U.S. law)? WI


If you mention, during compensation negotiations with a potential employer that the low ball salary they first presented fails to meet the FLSA 2004 regulations, (no matter how polite you are about it) they will most likely not make you an official offer for the job and head to the next not so smart candidate who probably doesn't know the federal Fair Labor Standards.

FLSA-2004 regulations changes

I was passed over this afternoon for a position, and I'm fairly certain it's due to mentioning this change in "the way it's always been done in the industry for 15 years" .

I was employeed in "the industry" prior to the Federal requirement change, so I mentioned to the Sales Manager of these changes while in compensation negotiations today and got an email from him before I even returned home that they were going to approach the next candidate.

Do I call the DOL or State DWD and report this?

 

[pattytx]

There is no violation yet. You did not accept the job, so you were not paid as an exempt employee at the lower-than-minimum salary requirement.

And not all exempt positions require a salary at all, such as Outside Salespersons. Since you mentioned the Sales Manager, was this an outside sales position?

 

[EarthMother01]

There is no violation yet. You did not accept the job, so you were not paid as an exempt employee at the lower-than-minimum salary requirement.

And not all exempt positions require a salary at all, such as Outside Salespersons. Since you mentioned the Sales Manager, was this an outside sales position?

Yes, it was, and if you read the link I posted, the regulations also apply to outside sales and that employment catagory is on the list.

 

[pattytx]

Excuse me, but outside sales positions, if the criteria is met, are NOT subject to the minimum salary requirement.
http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17f_outsidesales.pdf

I suggest you start getting your information from the Dept. of Labor itself, rather than articles written by someone else. Whoever wrote that article conveniently "forgot" to include this exception for the Outside Sales exemption.

 

[EarthMother01]

Ok. I see what you are saying,

So lets poise this query then.

The salary offered for an outside sales position (during an extended period that there is no commission structure and is in fact a training period) is exempt and don't have to meet the minimum weekly salary even when the duties during this time period do not meet the sales or order taking requirements?

 

[EarthMother01]

The salary requirements of the regulation do not apply to the outside sales exemption. An employee who does not satisfy the requirements of the outside sales exemption may still qualify as an exempt employee under one of the other exemptions allowed by Section 13(a)(1) of the FLSA and the Part 541 regulations if all the criteria for the exemption is met.

I can assure you that NONE of the "other exemption" criteria apply to this particular position, therefore wouldn't the salary requirement need to apply even if there was a commission paid?

 

[pattytx]

1. Now that's possible. While you are in training, my opinion would be that you would be nonexempt.

2. If the criteria for the Outside Sales exemption does not apply, then you would be inside sales and therefore, nonexempt.

 

[EarthMother01]

1. Now that's possible. While you are in training, my opinion would be that you would be nonexempt.

2. If the criteria for the Outside Sales exemption does not apply, then you would be inside sales and therefore, nonexempt.

And therein lays the cux of the problem. The "potential employer" was trying to offer a salary less than the required minimum, under an exempt status for the duration of the trainng period. No commission potential during this time frame.

It was also offered up in the negotiations that the maximum commissions, (straight commission after ther training period) that the sales territory could produce was 2000/month, and averages the stated 1500 a month they were willing to pay for the salary during the traing period.

So tell me, what is the incentive to take a 50% + pay cut and earn less than a person makes on unemplyment for a sales territory that will not produce a livable wage?

Monetizing ones value from prevoius skills training and experience in this economy seems to be worthless if the employer want the skills but is unwilling to pay fair market value for them.

 

[cbg]

So you don't want the job, turn it down already. If they can't get anyone to take the job at that rate, they'll up the offer. And until they ACTUALLY pay someone at less than the required minimum (and if the job is non-exempt, the required minimum for exempt is irrelevant) they have not committed any violations.

 

[EarthMother01]

So it's fully legal for a nieve employee to accept the terms to classified and exempt employee becasuse they don't know the law? It's only an enforceable law if a screwed enmployee argues it.

An employer can legaly offer a posotion in opposition to the FLSA, so long as the emplyee doesn't object?

Amazing.....I need to start my own business and hire stupid sales people**************

<rolls eyes>

 

[cbg]

That is not what I said.

The violation occurs when the employee is paid, not when the offer is made. You can't sue them or file a complaint about them for something they haven't done yet.

 

[EarthMother01]

That is not what I said.

The violation occurs when the employee is paid, not when the offer is made. You can't sue them or file a complaint about them for something they haven't done yet.

Even if others are neively working under these same peramaters? What about being the whistle blower to an industry that perpetuates this illlegal wage setup because it's been the industry sandard for over 15 years?

Industry standard doesn't equal legal under the FLSA.

 

[Country Living]

Since you keep using the word, it's spelled "naive" and "naively".

 

[eerelations]

The naive others working in this illegal situation have to make the complaint; you can't do so on their behalf. You can only formally complain if it's actually happening to you.