CA: unemployment if they move me from salary+commission to commission only

[Talented1]

I'm in california... My company is doing very poorly, and on the verge of not making payroll. I'm thinking that they're about to switch all employees from base salary+ commission to commission only.

Been there 13 months, and commission over the last 3-4 months has been next to nothing for any of the sales people (why I think they don't have any money)

so if they tell me to go commission only, can I refuse and file for unemployment?

 

[pattytx]

Inside sales or outside sales?

 

[Talented1]

inside sales.

 

[pattytx]

You cannot legally be paid "commission only" for inside sales in California. Although the FLSA allows for averaging of "regular rate of pay" (total commissions for the workweek divided by hours worked) and as long as MW is met, the law is deemed complied with, California does not. You must be paid at least MW for all hours worked.

Here's the difference.

In any other state, let's say you worked 40 hours in the workweek, 30 hours on the sales floor and 10 hours stocking shelves. As long as your commission, when divided by 40 hours, equaled at least MW, the employer would be fine.

But in California, with the same hours worked, your commission would need to be divided by 30 hours, and the stocking hours would have to be paid at least at MW. It sounds like a distinction without a difference, and in most cases, it is.

Having said that, "commission only" for inside sales, without regards to hours worked, is not allowed in ANY state.

 

[commentator]

So as soon as you are to begin "commission only" no salary, leave. Right then. Do not try this new arrangement for a few days, find you are not making it and then quit and go file for unemployment. Your chances of approval are much better if you leave as soon as they try to put you on commission only. You do not want to accept the terms of the new working arrangement (legal or not) and then voluntarily quit it. You want to be seen as refusing it from the beginning.

This will quite likely be seen by unemployment as a valid work related reason to quit your job. Don't accept the new pay arrangement, resign and file for unemployment at once as soon as you are sure it is in effect, and find another job as soon as possible. These people are attempting to deny their employees their legal wage to keep the company afloat, avoiding unemployment insurance for them in the meantime, and that isn't a good place to be.