What to Do if Your Commissions or Other Non-Discretionary Pay Are Not Factored intoYour Regular Rate of Pay for Overtime in California

If you are an employee in California who earns commissions or other non-discretionary pay, it’s
important to ensure that these payments are included in your regular rate of pay for purposes
of overtime. Under California law, your regular rate of pay is used to calculate your overtime
pay, and it must include all forms of compensation you receive, including commissions and
other non-discretionary pay. Examples of non-discretionary pay include bonuses, shift
differentials, and commission-based pay. In this blog post, we’ll outline what you should do if
your commissions or other non-discretionary pay are not factored into your regular rate of pay
for overtime.

Step 1: Understand your rights.

The first step in addressing this issue is to understand your rights under California law. Under
California Labor Code section 510, employers are required to include all forms of compensation
in your regular rate of pay when calculating your overtime pay. This includes commissions,
bonuses, and other non-discretionary pay. If your employer is not including these payments in
your regular rate of pay, they may be in violation of the law.

Step 2: Review your employment contract.

If you believe your commissions or other non-discretionary pay are not being included in your
regular rate of pay for overtime, the next step is to review your employment contract. Your
employment contract should specify how your regular rate of pay is calculated, including
whether or not it includes commissions and other non-discretionary pay. If your employment
contract is silent on this issue, or if it conflicts with California law, you may have a claim for
unpaid overtime.

Step 3: Gather documentation.

To support your claim for unpaid overtime, it’s important to gather documentation of your
commissions and other non-discretionary pay. This may include pay stubs, time sheets, or other
records showing the amount of these payments you have received. Be sure to keep copies of all
relevant documentation, as you may need to provide it to support your claim.

Step 4: Communicate with your employer.

If you believe your commissions or other non-discretionary pay are not being included in your
regular rate of pay for overtime, it’s important to communicate with your employer about the
issue. You may be able to resolve the matter informally by explaining your concerns to your

employer and providing them with the documentation you have gathered. If your employer is
unwilling or unable to resolve the issue informally, you may need to take further action.

Step 5: Seek legal advice.

If you are unable to resolve the issue with your employer, or if you have any other questions or
concerns about your rights, it’s important to seek legal advice. An experienced employment
attorney can review the facts of your case and advise you on your rights and options under
California law. They can also help you gather any additional evidence and represent you in legal
proceedings, if necessary.

Step 6: Consider your options for pursuing a claim.

If you believe your employer has unlawfully failed to include your commissions or other non-
discretionary pay in your regular rate of pay for overtime, you may have several options for
pursuing a claim. You may be able to file a complaint with the Division of Labor Standards
Enforcement (DLSE)of Labor Standards Enforcement (DLSE) or you may be able to file a lawsuit
in court. Your attorney can advise you on the best course of action based on the specific
circumstances of your case.
If your commissions or other non-discretionary pay are not being included in your regular rate
of pay for overtime in California, it’s important to take action to protect your rights. By
following the steps outlined in this blog post, including understanding your rights, reviewing
your employment contract, gathering documentation, communicating with your employer, and
seeking legal advice if necessary, you can ensure that you receive the overtime pay you are
entitled to. Don’t hesitate to seek legal help if you have any questions or concerns about your
rights or if you believe your employer is not complying with California labor laws.