The judges giveth, and the governor taketh away.
Or at least he’s trying to.
Hanging in the balance here: millions of dollars in overtime payments for thousands of people who sell cars, mattresses, furniture, and other products and work entirely for commission.
In May, the Supreme Judicial Court ruled that employers must pay overtime — on top of commissions — to salespeople who work more than 40 hours a week, and Sundays.
Understandably, some retailers don’t like that one bit, and they clearly have the ear of Governor Charlie Baker: Language he slipped into his supplemental budget bill would gut the SJC ruling. An end of fiscal year bill is an unusual vehicle for making major policy, given that such bills generally move without much open debate. Perhaps the governor was hoping nobody would notice?
“Governor Baker is basically proposing to reach into the pockets of these workers who are owed millions of dollars in overtime,” said Steve Churchill, the attorney who fought the case on behalf of employees of Sleepy’s mattress stores at the SJC. “And he’s trying to do it under cover of darkness.”
It may not be immediately obvious to those of us who have negotiated auto purchases, but selling cars — or anything — for commission is a tough way to make a living. For all but those at the top of the heap, it is a working-class job that involves long hours, inconsistent income, and much grunt work far from customers — clearing snow, moving cars, attending trainings, and more.
Most work very long weeks — 45, 50, 60 hours — including nights, weekends, and holidays, to try to make decent salaries. Commissions run around $100 per vehicle sold, though some newcomers might make as little as $25 per car sold, and some might break $200. A solid salesperson at a workaday dealership might gross about $50,000 per year. Many earn way less than that. Average out the hours and it’s not great money.
It’s much the same hard story in other retail trades.
“When everybody else is playing, we’re working,” said Mark Schneider, a father of four who worked for 12 years at a large furniture retailer, where he was paid entirely via a 3.5 percent commission on his sales. “You miss birthday parties, graduations, cookouts. . . . It’s impossible to get the time off.”
Commissioned employees don’t have the option of taking off weekends and holidays: That’s when sales happen. In his best years, Schneider made good money, but there have been awful years, too. And all of them were packed with hours of work that ended without sales and paid nothing.
Overtime rules are meant to discourage companies from requiring employees to work more than 40 hours per week and on Sundays, and to compensate those employees appropriately when they do. They’re supposed to nudge companies to hire more people, rather than stretching thinner the ones they have. The SJC ruling found those goals worthy when it comes to commissioned workers. And so it ordered Sleepy’s to pay 1½ times the minimum wage on top of commissions for overtime and Sundays going forward, and to give back pay for the past three years.
The case has implications for thousands of workers beyond the mattress company, says Churchill, the attorney who argued it. Some companies have started paying overtime since the decision, but others are fighting it.
They have an ally in the governor, whose proposal would nix the retroactive payouts, and allow companies to continue to profit from commissioned employees’ long hours.
Maybe there’s a discussion to be had about whether retailers can afford to comply with the SJC ruling, and whether it will mean lower overall pay for commissioned employees. But it can’t come via a major policy proposal tucked deep inside a routine spending bill.
Legislators must pull it out.
The governor’s people say he welcomes a conversation on the merits of his proposal. That’s great. Let’s make it a real one.