Commissions denied to any Specialists?

Joined: 12 Jan 2006 Posts: 4

I was a specialist who was earning commissions until my 90 days were up when they were stopped due to my not taking the Level I certification. I was aware such a test existed, but not that there was a limit as to when I needed to take it or that I would no longer receive commission for not taking it. However, I had 2 months prior, taken a 5 day level 2 certification class.

I was not reminded during this time about it from anyone. So, in ignorance believed I was still receiving commission. This just happened to occur during the busiest time of the year in my department and I had excellent sales. This went on for !6 weeks! before I found out I wasn't actually receiving my commissions. I didn't know this because payroll made errors on our paychecks so some previous commissions carried over and it looked normal. The SOS Commissions Earnings Reports were never given to us. Neither myself nor many of my coworkers even knew this report existed. Had I received that and or payroll not have been screwed up, I would have realized only a few days after my commissions were stopped that there was a problem.

Please tell me, has anyone else had this problem? Can this be legal? Per Lowe's own Policies and Procedures "the store manager must ensure each qualifying employee is SOS certified" and "the store manager must ensure that SOS earning employees receive a copy of this report" with each pay period. (My quotes may not be exact, but pretty close).

Essentially I lost almost $2,000 because of this and Lowe's says they will not make an exception because if they do it for one person, they will have to do it for everyone.

Of course this also brings into question the whole exempt thing for specialists. If I was denied commission, shouldn't I have been paid time and a half during this period?

Joined: 06 Jul 2003 Posts: 7078 Location: Central CA

This sounds a bunch of good reasons for contacting a labor attorney or your state's labor board. Might check for attorneys who offer the first consult free. Some do, but in any event you need more clarification than you're going to be able to find here.

Several big labor law firms specializing in class actions allow you to submit a description of your case on line or via email without charge after which they can contact you for further info or advise you that there's no case, at least in their view.

If you do go the online submission route, be careful, because many limit the length of the narrative and you will need to stick to the absolute bare facts of your case. Use email if possible, which allows you a little more verbosity.

The fact that they would have to "do it for everyone" has nothing to do with whether they owe you money or not. The only bearing it might have is that if enough people were done they way you were done it might be the basis for a class action which is what you really need to hope for.

If you find that you're not alone and that a significant number of people have been treated the same way, it can often make a difference as to an attorney's interest in your case. In many states they're limited to a percentage of recovery and in all fairness, any percentage of $2000 probably wouldn't pay the expenses of filing the case. I ran into that limitation in an entirely different type of case a few years ago.

In any event, best of luck. I hope others come forward and that you are all able to have the matter resolved in your favor. Let us know what happens.

Joined: 08 Jul 2003 Posts: 214

There are people in the store that should make sure you reach all your training deadlines, it sounds like in your case they dropped the ball. Lowe's wouldn't win any awards in training employees, it's there on the system, in most cases if you want the training you have to do it yourself. Since you're a Specialist your superviser is the Sales Manager, he or she should have never let this happen. As for being paid time & ahalf while not being able to recieve commission, thats a very good question. I wouldn't take Lowe's word for it, go to the Federal Labor law site and e-mail them the question and see what they say. Whatever Lowe's tells you may or may not be true. Lowe's does has some wage problems that don't jive with the Labor Board, Lowe's has to go by the Labor Board policy, they can be stronger than the Federal policy but they can't be below the Federal standard.

Joined: 12 Jan 2006 Posts: 4

Wow, great advice, thank you –both of you. I will try all those things. Yeah it seems like one reminder in my entire 90 days wouldn't be too much to ask.

Do either of you happen to know if Lowe's angle for the overtime issue is that we are salaried and therefore exempt? Or is their angle the fluctuating workweek. I read in the Lowe's online guide that if during a 14 week period you do not meet the requirements of being exempt based on your hours and pay- then they will retro pay time and a half. I cannot imagine first of all that any specialist meets the exempt requirements of the amount you receive in commissions must exceed 50% of your salary. And in my case couldn't have during this time period.

Joined: 06 Jul 2003 Posts: 7078 Location: Central CA

I'll have to bow out on that one since I don't work there and am not familiar with their internal policies and programs but it does seem to be a trend among retail companies to require non-hourly personnel to work up to 60 hours a week, often out of class in order to cut down on hours for the hourly personnel. There are a couple of class actions going on now although moving painfully slowly as such matters usually do.

My suspicion right now would be that if you are classed as salaried you are truly exempt and you aren't entitled to OT under normal circumstances. If however you are being required to perform the duties of hourly personnel in case of absence or inadequate numbers on the part of hourly personnel, you might have a case. If that's so, bring that up with whomever you contact on the other matter also.

Joined: 12 Jan 2006 Posts: 4

Nofsdad,

I was a specialist which is classified as "salary plus overtime". We get basically 1/2 time after 40 hrs, as we are not truly salaried. This is where most of the class action lawsuits come in to play. But they can do this half time per the section 7 rule from the FLSA- in relation to commissions. The fact that they pay commissions to us (we actually are paid hourly -but at a constant base rate) is the reason they have been getting away with the half time. They must meet 3 requirements. The 3rd one I don't believe the meet. Which is the 50% of your salary=commissions thing.

Joined: 08 Jul 2003 Posts: 214

Joined: 12 Jan 2006 Posts: 4

With not meeting 2 of the exempt requirements, is there any possible way they can win?

And is the fluctuating workweek independent of the exempt issue? It seems like now Lowe's is calculating the extras (comm, bonus, etc) into that figure —at least as far as I can tell. So they don't meet the classification of exempt employees for Specialists, but does it matter since the fluctuating workweek with their current calculations seems to be within the parameters of what it should be?

Joined: 08 Jul 2003 Posts: 214

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