NEW YORK — Two employees of a chain of waxing salons are seeking to represent a class of employees in a lawsuit against their company, Uni K Wax, for violating the Fair Labor Standards Act (FLSA) and New York state labor laws. The class would include employees who worked or continue to work at the salons from six years ago to the present. The company has nine locations in New York City and 21 locations in Florida, with plans to launch more locations in New Jersey in the future.
Commissions as Wages
The plaintiffs claim that the employees in the class are paid by commission and regularly work more than 40 hours a week but only get paid as little as $300 for their labor. The company apparently required the employees to falsify time records by requiring them to clock in and out when each customer arrived, rather than when the plaintiffs were required to be on the company’s premises. One of the plaintiffs indicated in the lawsuit that she was forced to resign after she sought to work fewer hours due to a pregnancy. Although the salon initially agreed to the fewer hours, her supervisors often put her on shifts outside her new regular schedule and harassed her when she declined to pick up specific shifts.
The minimum wage under FLSA is an hourly wage. However, this does not mean that employees have to be paid by the hour. Employers may pay by commission and other means as long as the total amount paid divided by the total number of hours worked is equal to at least the minimum wage.
Additionally, employees may fall under an overtime exemption if they are employed by a retail establishment and are paid on a commission basis in whole or part. If a service establishment elects to use the overtime exemption for commissioned employees, there are certain conditions that must be met according to the Wage and Hour Division, the arm of the U.S. Department of Labor tasked with enforcing FLSA:
- The commissioned employee’s regular rate of pay must exceed one and one-half times that applicable minimum wage for every hour worked in a workweek in which overtime hours are worked;
- More than half the employee’s total earnings in a representative period must consist of commissions.
Recordkeeping Obligations
The employees in this lawsuit allege that they were required to falsify time records by requiring them to clock in and out when each customer arrived, rather than when they were required to be on the company’s premises. Under FLSA, employers are required to maintain accurate records regarding the hours worked and wages earned for each employee. This includes accurate records on the time and day that an employee’s workweek begins and the hours worked each day. Employers may use any timekeeping method they choose as long as those records are complete and accurate.
If you or someone you know is not being paid the federal minimum wage or is misclassified as exempt from overtime, you should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page. Our top rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing so it is important that you call our experienced attorneys today.