(a) Retail or service establishment employees are generally compensated (apart from any extra payments for overtime or other additional payments) by one of the following methods:
(1) Straight salary or hourly rate: Under this method of compensation the employee receives a stipulated sum paid weekly, biweekly, semimonthly, or monthly or a fixed amount for each hour of work.
(2) Salary plus commission: Under this method of compensation the employee receives a commission on all sales in addition to a base salary (see paragraph (a)(1) of this section).
(3) Quota bonus: This method of compensation is similar to paragraph (a)(2) of this section except that the commission payment is paid on sales over and above a predetermined sales quota.
(4) Straight commission without advances: Under this method of compensation the employee is paid a flat percentage on each dollar of sales he makes.
(5) Straight commission with “advances,” “guarantees,” or “draws.” This method of compensation is similar to paragraph (a)(4) of this section except that the employee is paid a fixed weekly, biweekly, semimonthly, or monthly “advance,” “guarantee,” or “draw.” At periodic intervals a settlement is made at which time the payments already made are supplemented by any additional amount by which his commission earnings exceed the amounts previously paid.
(b) The above listing in paragraph (a) of this section which reflects the typical methods of compensation is not, of course, exhaustive of the pay practices which may exist in retail or service establishments. Although typically in retail or service establishments commission payments are keyed to sales, the requirement of the exemption is that more than half the employee's compensation represent commissions “on goods or services,” which would include all types of commissions customarily based on the goods or services which the establishment sells, and not exclusively those measured by “sales” of these goods or services.
Notes of Decisions
Robert Stein v. hhgregg Inc., 873 F.3d 523 (6th Cir. 2017).
· cites it 5× “‘draws’”) as a potential method of compensation for retail sales employees, 29 C.F.R. § 779.413 (a)(5), the draw policy at issue here appears to be somewhat unique.”
Mcaninch v. Monro Muffler Brake Inc., 799 F. Supp. 2d 807 (S.D. Ohio 2011).
· cites it 4× “See 29 C.F.R. § 779.413 (b) (“Although typically in retail or service establishments commission payments are keyed to sales, the requirement of the exemption is that more than half the employee’s compensation represent commissions ‘on goods or services,’ which would include all…”
Parker v. NutriSystem, Inc., 620 F.3d 274 (3rd Cir. 2010).
“[1] See also 29 C.F.R. § 779.413 (a)(4) (describing a "[s]traight commission" as "a flat percentage on each dollar of sales [the employee] makes"); U.”
Corman v. JWS of N.M., Inc., 356 F. Supp. 3d 1148 (D.N.M. 2018).
“29 C.F.R. § 779.413 . [F]ederal regulations provide two non-exhaustive examples of compensation *1188 plans that do not qualify as bona fide commissions: (1) a plan where the formula for computing commissions is such that the employee always or almost always earns the same fixed…”
Roto-Rooter Servs. Co. v. Dep't of Labor, 593 A.2d 1386 (Conn. 1991).
“” 29 C.F.R. § 779.413 (b). The regulations also describe “a bona fide commission rate” within the meaning of § 207 (i) (2), a phrase likewise contained in our § 31-76Í (g) (3), as one that “var[ies] in accordance with the employee’s performance on the job .”
Salon Enter., Inc. v. Langford, 31 P.3d 290 (Kan. Ct. App. 2000).
“” 29 C.F.R. § 779.413 (b) (2000). Another regulation describes a “bona fide commission rate” as one that “var[ies] in accordance with the employee’s performance on the job.”
Kuntsmann v. Aaron Rents, Inc., 903 F. Supp. 2d 1258 (N.D. Ala. 2012).
“The DOL Regulations expressly recognize compensation plans like the one at issue as being “bona fide” plans under § 207(I) — i.”
Tracy Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (11th Cir. 2001).
· cites it 4× “Further support for this interpretation of commission may be found in 29 C.F.R. § 779.413 (b), which states: Although typically in retail or service establishments commission payments are keyed to sales, the requirement of the exemption is that more than half the employee's…”
Stahl v. Delicor of Puget Sound, Inc., 34 P.3d 259 (Wash. Ct. App. 2001).
“The majority noted that the purpose of commissions is to encourage speed and efficiency, and relied on 29 C.F.R. § 779.413 (b), which states: Although typically in retail or service establishments commission payments are keyed to sales, the requirement of the exemption is that…”
Gordon v. TBC Retail Grp. Inc (D.S.C. 2020).
· cites it 4× “3 Some courts have focused on the typical compensation methods for employees of 4 retail or service establishments under § 29 C.F.R. § 779.413 (a). See Viciedo v. New 5 Horizons Computer Learning Ctr.”
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