A group of sales representatives for a car dealership have requested conditional certification in a Fair Labor Standards Act case. The employees allege that they were paid less than minimum wage and were not properly paid their commissions. The case is entitled Hotaranu et al. v. Star Nissan Inc. and was filed in federal court in the Eastern District of New York.
The named plaintiffs contend that they only received a base rate of $100 per week for those weeks in which they did not earn commissions, thereby causing their compensation not to meet the minimum wage standards. The complaint (filed in September 2016) alleges that there were numerous times when a sales representative did not earn any commissions, or where the commission were insufficient to meet the minimum wage/overtime requirements of the FLSA.
The Complaint also claims that the dealer manipulated gross profits of sold cars that resulted in reductions of the commissions earned by the sales representatives. The named plaintiffs allege that they received flat commissions regardless of the gross profit on the car sold. This, they claim, was done, notwithstanding agreed-upon calculations in their commission agreements.
The motion for certification claims that the plaintiffs have met their burden for conditional collective certification because they have demonstrated that the sales representatives are subject to the same policies. At the conditional certification stage, the burden is fairly low (in any event) and the plaintiffs note that they have produced an alleged “well-pled” complaint and four affidavits from Star Nissan employees. This is sufficient, according to plaintiffs, for the motion to be granted.
It seems that there is a good chance that the motion will be granted, as the burden on plaintiffs at this stage is low – some might say, ridiculously so. With that said, there might be an out, a magic bullet for the employer. If the auto dealership is defined as a “retail business” under Section 207(i) of the FLSA and if the commissions earned equaled or exceeded 50% of weekly income over a representative period, then the sales representative(s) would be exempt from overtime for those weeks under the so-called commission exemption of the FLSA.
Then, the whole thing (or a good chunk of it) goes away.
Worth looking into…