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To forego concerns about labor overtime, overtime claims, wage claims and to insure employee performance businesses often implement creative commission structures designed to benefit the motivated employee and the employer. California overtime and compensation laws are generally very protective of workers and the legal system for the most part protects workers against creative commission schemes.

In one such creative commission structure the employer attempted to circumvent the law by not paying commissions after the employee left, even if the commission was really earned by the former employee. In an environment of high employee turnover, which is often the case with sales persons, such a plan made perfect sense for the employer. Fortunately for the employer the plan was turned down by the California Division of Labor Standards Enforcement and the employer did not have to worry about future wage claims.

The employer sought an opinion letter before proceeding with the plan. In the plan it described a compensation system that included quarterly payouts of commissions on sales. The program also required current employment at the time of the quarterly commission payout. If the employee was not working at the time of the quarterly payment then no payment was due.

The Division of Labor Standard Enforcement advised that commissions on sales are waged calculated and owed upon the completion of the sale and must be paid in accordance with California Labor Law. Under California law wages earned are due and must be paid twice during each month on days designated in advance by the employer. Such a plan was deemed to be unacceptable as it was not compliant with existing law. Even if the plan did not provide for forfeiture of commissions it would still not be compliant, because it did not provide for payment of wages twice a week.

A labor attorney knowledgeable about labor laws is often very instrumental in helping a business stay out of trouble. A labor attorney is likewise very instrumental in helping an employee with wages and overtime lawsuits.

In this such case it was fortunate the employer was advised to seek such an opinion before attempting to implement the plan. Otherwise a workers attorney would eventually have picked up as a good wage claim to litigate.

In the opinion issued there was a reference to case where it was determined to not pay commissions where the orders were cancelled. That case was distinguished on the grounds that it was not unreasonable because of the period of time and the fact that no sale had actually occurred if there was a cancellation. The DLSE further added that this plan did not provide for a salary to be drawn against future commissions. The DSLE opinion letter stated that it is sometimes permissible to require that the contract upon which the commissions are based is not complete until payment of the contract price to the employer.

The DLSE conclude by summarizing as follows:

To summarize then, we would first point out that commissions
earned on a sale must be paid within the pay period pursuant to
the provisions of Labor Code Section 204. Withholding payment of
earned commissions until the end of a three-month period would be
a violation of California’s Labor Code. Additionally, any earned
commissions may not be forfeited. As pointed out above, reasonable
conditions may be placed on the vesting of the commissions; but once
vested, the commissions may not be forfeited as a result of the fact
that the employee terminates the employment. We might also point
out that common law contract doctrines (prevention) would prevent
an employer from forfeiting commissions which would have been
earned by discharging the employee before those commissions vest.

Generally speaking if there is some sort of unfairness to the compensation plan it will eventually result a workers attorney filing an overtime claim or some sort of labor law attorney filing a wage claim or labor law violation claim. The sure way to invited a workers attorney to file a claim for unpaid wages is to implement an inherently unfair compensation plan.

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California Overtime

Overtime, straight time and other compensation for entering a trainee programs is often an area of litigation. Training is often an area of litigation where overtime claims are filed to demand not only payment for overtime, but for straight time when wages are not paid, because the rules are often misinterpreted.

Overtime lawsuits arise when individuals feel their overtime rights have been violated, and sometimes they arise when trainees are unhappy because of training hours in excess of 8 hours per day. In many instances payment of wages is not required when the prospective employee is undergoing training. It depends on the specific circumstances of each individual case, but it is usually a matter of determining if the training is for the benefit of the employer or the trainee. One particular area where training is required under California Law is in the private security guard industry.

In a recent opinion letter the California Division of Labor Standards Enforcement determined that no wages were due when training security officers for private security companies under new laws that purport to regulate the industry. The opinion was cautious and tends to suggest that even though it can be used as guidance it should not mean to be interpreted as applying to all situations.

The opinion of the labor commissioner is that the time in the pre-employment training program does not require wage compensation under the facts presented in your letter. The letter focused on the required security officer training in order to be a registered security officer and not the licensing of a private operator. In rendering it is opinion the Division of Labor Standards Enforcement relied on a test it regularly uses to evaluate training programs and determine whether individuals are exempt from minimum wage requirements as trainees.

In this specific case the training was provided at no cost, but it did promise or guarantee employment, but it was required before any employment would be offered. The prospective employee had to also comply with other company hiring requirements.

The Divison of Labor Standards Enforcement also noted that no work was required as part of the training. No work was performed directly or indirectly in the participation for the private security operators. The participant’s training is for their own advantage and at not cost, which happens to be a requirement under federal and state laws that pertain to hiring interns without pay. The fact that an offer of employment could follow upon completion of the training program was determined to be insufficient to establish and employer employee relationship.

The Divison of Labor Standards Enforcement was satisfied that there was no employment relationship and therefore the trainee would not be entitled to overtime pay, straight pay, or any benefits. The DLSE also emphasized that a different result could ensue if there are assignments to work for, or individuals are allowed to work on behalf of, the training private security operator, because the trainee would be engaged, suffered, or permitted to work by the operator.

The focus is therefore on whether or not the employee is engaged in activities that could be construed as work done on behalf of the operator providing the training or if the training is for the benefit of the operator and not the trainee.

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Labor Overtime

Like the rat in the cage we are driven by rewards. It’s only human and also perhaps rat nature. Suffice it to say it’s nature.

So when compensation, the reward, becomes stagnant so does productivity. If like rats we are paid by the time we spend in the cage, then the expected level of productivity is simple compliance.

By focusing on minimum standards employees tend to get there and stay there; a comfort zone or twilight zone or Bermuda Triangle whatever else it can be called.

That comfort zone is not where you need nor want to be. Did you make a conscious decision to not do what is in the best interests of your company? Why? Don’t you ever ask what does your company need? What is the first step?

If you need to make changes, be wary of copying formulas. The best plan is the one that works best for your unique circumstances. Look first to your industry but also take a look outside your industry when looking for the right compensation plan.

The important thing is to first look for the concepts in compensation that drive your company’s performance and productivity.

Sometimes combinations of plans work the best. Simpler is better but sometimes by combining two measures, such as productivity and attendance; a compensation plan can be enhanced.

The best approach is to identify which key performance indicators should be the foundations for the compensation plan.

If you are going from a ‘time and space’ or hourly wage rate to an incentive plan then look for ways to start that change. There may be a great deal of reluctance on the part of your current employees but ask for their opinion. That way, once the plan is implemented there should be no complaints.

Talk about the new plan in your business, group and team meetings. You might start by using small gifts or cash rewards for top performance which helps employees get accustomed to the idea.

The idea is to try to modify your employee’s behavior little by little so it’s preferable to start small and gradually gain credibility. Actually rats do the same thing.

Use spreadsheets to work out the ranges of possible plans. Be wary of straight commission as it can often create internal friction. Don’t forget to look at tying part of your bonus or incentive plan to overall company performance.

Once you have a plan you can test backwards to see how it would work. Depending on your plan, you can do a trial run and see how employees react. Make certain that poor performance is not rewarded.

Establish a minimum performance level and make it the low end of your compensation scale. Make sure your plan is easily track able by both you and your employees.

Under ideal circumstances top performers should get at least two or three times more than minimal performers. Even if you are not able to create such a variation “skew” the better rewards should go toward top performance.

As with all incentives and bonuses it is important that the prize be something the employee considers of significance. Pure praise is fine but a cash reward or dinner for the family makes it tangible and real. To give someone a paltry bonus is the same as saying it does not matter. If it does not matter, why do it?

It is better to have a low base wage/salary with a large incentive component. If the base is too high there is little incentive to perform at higher levels.

Expect minimal employees to whine, complain and quit after the plan is in place. Expect to see more qualified and motivated employees wanting to join your company. Expect your better employees to become more loyal.

A well designed compensation plan can give your company a strong competitive advantage. Too bad your competitors may find it impossible to compete directly with you for the best employees.

Jack Deal is the owner of Jack D. Deal Business Consulting, Santa Cruz, CA. Related articlesmay be found at http://www.jddeal.com/blog/human_resources and http://www.freeandinquiringmind.typepad.com

When you go in for a job interview, the most important thing for you to do is to get the job. Nothing else, right?

Actually, one of the most important things you need to negotiate is your potential salary. Here are a few tips on how to get the job you want and the salary you deserve.

1. Be flexible. Know what the least amount of money you will take, and the amount that you feel you deserve, then be flexible enough to give your boss the option of how much within that range he can pay you. Remember, even though he has read your resume and has interviewed you, he still does not know for sure if your work ethic will be as good as it appears once you actually get the job.

2. Be comfortable, upfront, and sincere. Your boss is going to want you to work and act on the job as well as you do during the interview.

You can’t be a complete angel during the interview, get the job, then do the worst possible job that you could. Just be yourself, and if the person you are is not good enough for the boss, it will save you a miserable job experience anyway. You shouldn’t have to pretend to be someone you’re not to get the job and the salary you feel you deserve.

3. On the other hand, don’t just be sloppy. You have to come across as the real you, but the good, clean, hard working side of you.

Getting a job and a good salary will take a little work, and you need to make a good impression. Going into a job interview with your pajamas on and a bad attitude won’t get you a job period, much less good wages.

4. Don’t just settle. One of the worst things you could do is let your potential employer control you to the point that you take any type of salary that he throws at you.

You have the potential to be a good employee, and you should get the kind of pay that you deserve based on how hard you work and what kind of benefits you will bring to the company. If there’s a job out there that will give you a better salary than this one, you need to find it.

5. Do not be afraid to walk away. If you are not seeing the possibility of the kind of salary you are looking for, remember, you do not have to take the job.

Sometimes, if you act like you’re going to turn down the job offer because of your salary, some potential employers will raise the salary. If not, you are better of finding a job that will give you better, well deserved wages for the work that you do.

Whether you are getting a job or just wanting a pay raise from the job you’ve had for years, these tips will help. Knowing what tactics to use when consulting your boss for a raise will give you better chances to get paid the money you deserve for the ambition and hard work you do.

Court teaches people how to indentify the right home business opportunity and helps people locate a good internet marketing seo consultant.

Recently the California Supreme Court rendered a decision in interpreting California Labor Code Section 226.7.

The issue was whether Labor Code section 226.7 provided for payment of one additional hour of pay when an employer failed to provide a meal break after five hours of work or a rest period after four hours of work and therefore it was pay and subject to a three year statute of limitations, meaning the employee could bring a claim three years after the fact, or if it was penalty and subject to a one year statute of limitations. In the case of Murphy v. Kenneth Cole Productions, Inc., the Supreme court addressed the issued.

In this case the Supreme Court summarized the facts as follows:

“John Paul Murphy worked as a store manager in a Kenneth Cole Productions (KCP) retail clothing store from June 2000 until June 19, 2002, during which he was paid a weekly salary. The store was open from 9:30 a.m. to 8:00 p.m., Monday through Saturday, and 11:00 a.m. to 6:00 p.m. on Sunday. On a typical day, Murphy and another employee arrived around 8:30 or 9:00 a.m. to open the store. Between 9:30 a.m. and 1:00 p.m., Murphy did nothing other than make sales, receive or transfer product, process markdowns and clean.”

“During a usual weekday afternoon, the second shift of either one or two people arrived at 1:00 p.m. The employee who had opened the store with Murphy would go to lunch, and Murphy and another employee would begin carrying merchandise into the stockroom while covering the sales floor. At some point, Murphy would go to the office to eat as he continued to work. By 2:00 p.m. he was either on the sales floor or working back in the stockroom. Murphy was scheduled to leave at 6:00 p.m., but he often would have customers on the sales floor, or would do some human resources paperwork.”

“Murphy’s duties when he worked the closing shift from noon until 8:00 p.m. were essentially the same as when he worked the opening shift. On most days, he was on the sales floor or in the stockroom from 12:30 to 4:30 p.m. At 4:30 p.m. he would try to eat lunch while he checked KCP company voice mail and e-mail in the office, and then worked on the sales floor until closing time. After the store was closed, Murphy and a sales associate would verify the bank deposit, clean up the store, put shoes away, vacuum and empty the garbage. Typically, they would finish cleaning around 8:45 or 9:00 p.m.”

“Murphy regularly worked 9- to 10-hour days, during which he was only able to take an uninterrupted, duty-free meal period approximately once every two weeks. He rarely, if ever, had the opportunity to take a rest period and, on occasion, was unable to go to the restroom.”

Plaintiff Murphy resigned on June 19, 2002 and then filed a wage claim with the Labor Commissioner.
About eight months later the Labor Commissioner conducted a hearing and issued a decision in Murphy’s favor and awarded unpaid overtime, interest, and waiting time penalties. KCP appealed it to Superior Court and plaintiff asserted claims for meal and rest period violations. The superior court permitted the additional claims.

The trial court awarded payment for missed meal and rest periods applying the three year statute of limitations under Code of Civil Procedure section 338. KCP appealed from the trail court judgment. The court of appeal held the statue of limitation is one year and that claims may not be raised for the first time on de novo appeal from an administrative hearing in front of the Labor Commissioner. The plaintiff appealed to California Supreme Court.

Overtime and rest period violations attorney Arnold Hernandez can be reached at
San Diego Overtime Attorney Arnold Hernandez

Among company benefits, more often than not employees rank health insurance as the more important. It is estimated that more than 60% of American who have health care receives it through some type of employer sponsored group plan. While various state regulations differ, there are certain benefits to having coverage through an employer. This makes the offering of health care plans a strong bargaining tool. Many employees take a lower wage in order to get good insurance. Small business owners are posed with some challenges, however because the rising costs of offering health care is making it increasingly difficult to give employees the level of benefits that larger companies can offer.

Business owners can search for company health insurance by large, national organizations or by state. By going state by state to find a company, business owners may be able to save some money. An internet search can turn up dozens of companies. They should type in the state, then health insurance. California, for example, returns literally dozens of companies that are specific to that state.

Types of Group Health Insurance

Traditional
This type of insurance is the most flexible. Traditional coverage, also known as indemnity coverage, allows the person to see any doctor or hospital of their choosing, see specialists without a referral and the insurance company is unable to determine if a visit to a doctor or specialist is necessary or not. Unfortunately, this type of coverage is also the most expensive. Many companies have opted to switch this type of plan for more affordable health care. Small business owners almost certainly have to opt for less expensive plans.

HMO
Health maintenance organizations (HMOs) were offered as the first alternatives to traditional coverage. An HMO uses a network of doctors, hospitals and health care facilities to keep health care costs low. The person must choose a doctor who then has to approve visits to other doctors and specialists. This is the least flexible of the plans, but the least expensive.

PPO
Preferred provider organizations (PPOs) have found their way to the top of the list as the most popular choice for healthcare plans that are employee sponsored. More of a discount plan, a PPO has a network of doctors and hospitals that provide health care at a reduced fee to PPO members. While there is more flexibility with this program, patients may find themselves making higher payments to doctors who are not in the network.

POS
Point of service (POS) plans, also known as open ended HMOs, are a combination of an HMO and a PPO. Members have the option of selecting a primary care physician but that physician can be in the network (for a lower price) or out of the network (for a higher price).

It is important for companies to determine the best type of plan to offer employees when it comes to health care plan. Small business owners should pay particularly close attention to the level of benefits they can offer as well as costs. Coverage costs can vary and a company’s employee base can fluctuate, change or grow. A company based health plan must be able to keep up with the changes. It is a good idea for companies, large or small, to reevaluate their employee benefits package, particularly health care plans, each year. It is important to employees and can be the difference between attracting top notch employees who stay and mediocre employees who increase the turnover rate. Employee health care is well worth the time and cost.

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by Anthony Smith at:
http://healthinsuranceinfo4u.com