Under Federal Law, the Fair Labor Standards Act, most employees are entitled to overtime pay even if they are paid on a commission or "piece rate" or salary basis. Although certain commissioned salespersons are exempt from the overtime pay requirement, and need to be paid overtime wages, that exemption only applies to "outside" or "retail" salespersons. Berkley Group timeshare salespersons work on Berkley Group’s premises (they do not conduct "outside sales") and the product they sell (timeshares) is not a "retail" product but a real estate interest.

Even if the Berkley Group treats you as an "independent contractor" or "licensed real estate salesperson" that does NOT deprive you of your "employee" status for Federal overtime pay purposes. Under Federal law you are an "employee" for overtime pay purposes if the "economic reality" of your situation is such that you are truly working like an "employee." Berkley Group timeshare salespersons are not working like independent business people. They have no direct investment in the Berkley Group business, they do not set their own hours, they do not control how they sell the Berkley Group product or what it is sold for.

How would my right to overtime pay be calculated?

Your overtime pay as a commissioned sales person would properly be calculated by taking the gross earnings in each week and dividing that amount by the total hours you worked to figure a "regular hourly rate". You would then receive overtime pay based upon that "regular hourly rate." The best way to understand this is with a simple example: You worked 50 hours in a week and earned $1000. Your hourly rate was $20 an hour (1000 divided by 50). Your overtime rate should have been $30 an hour (time and one-half) for the 10 hours you worked over 40 hours in the week. But you only got $20 for each of those hours. In this example you are owed $100 for the week.

You very likely do not have precise records of the hours you actually worked each week and Berkley Group may have not kept precise records of your hours. That is OK. The Court can, and if necessary will, use estimates or approximations to figure out the amount of overtime you are actually owed.

You would also be owed minimum wages if you worked during certain weeks in which you received no pay whatsoever or pay that was less than the minimum wage.

How can I assist in this case?

Currently this case is pending in the District Court of Nevada (you can view a copy of the complaint by clicking HERE Because Federal overtime law covers all workers throughout the country, the case in Nevada can be held by the Court to allow participation by all Berkley Group workers throughout the country. But the Court, at this time, has indicated it does not believe claims by Berkley Group workers involving work outside of Nevada should be determined in the Nevada lawsuit.  This office does not believe that is correct and still hopes to convince the Nevada Court to hear the claims of Berkley Group workers from outside of Nevada. This office is interested in speaking with Berkley Group workers from other states who are willing to come forward and advise the Court that they are owed unpaid overtime for work they did outside of Nevada.  Providing the Court with that sort of information may help persuade the Court to allow Berkley Group workers outside of Nevada to participate in this case.

Please contact the Law Office of Leon Greenberg for further information about the Berkley Group litigation and how you can assist in this very important case. Call 702-383-8109 or e-mail at attorney at overtimelaw.com
All inquiries will be kept confidential.