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My friend has a 100% commission job. They accepted the offer a few weeks ago because they were thrilled to find a job which explicitly had extremely flexible hours. The employer even told them that they didn't care when they worked, as long as they made the numbers. As a result, my friend accepted this offer and turned down other offers with a big base pay. Flexible hours meant more to my friend than monetary security.

My friend expressed from the beginning they need the flexible schedule for personal and educational reasons, and that mornings did not work. They need to start at 10 to 12 and don't mind working late, due to their schedule. This was fine the first couple weeks. But, they were hoping after training to have even greater flexibility as promised, as long as they make the numbers and meet the sales goals.

This week there was an event that significantly increased the need for sales, which happens a couple times a year. It was now that my friend's boss said they are an 8:30 to 5:30 company and expressed how the boss and the sales manager come into work at 6:30 every day. The boss told them to come in at 6:30 am yesterday and today and probably many other days.

What time the administration team comes to work does not seem relevant, because my friend was hired for a flexible schedule outside sales job. The manager then went on to say it wouldn't be fair to others who start work at 7:30, but there is only one other sales person because the rest quit or were fired before my friend started. So it's not much of a sample size.

My friend is upset about this because they never agreed to early mornings. In fact the owners confirmed in the interview, and flexible schedule is in the job description. Also, it says that the employee will have "complete control" of the sales and that they don't micro manage employees. They were told they could work any hours, anytime, any days they wanted, all that mattered was the numbers.

The boss has a valid reason for the ask. There are limited sales staff (just one and some new hires that haven't started) and the boss wants to beat the competition in this peak time. But this was not in the job description and is completely different than agreed, and seems like a breach of contract.

It's a small company and the request is understandable, but is a completely different job description than my friend accepted and doesn't work for their schedule. It almost seems like the original job no longer exists and my friend is being asked to do a different job, although the process is the same but the hours are not flexible at all.

The boss is a really nice guy and my friend wants to work on a flexible schedule there, they just would have a really hard time starting at early hours and it isn't what they signed up for. They also feel betrayed because these hours proposed are worse than the traditional hours of the jobs having large base pay, which they turned down because of early hours and inflexible schedules.

How should I advise my friend in this matter? Did the boss breach contract, or is it considered reasonable since there's a valid reason for the change in work hours, although not agreed upon?

Worse, is a noncompete enforceable if the fundamental hours are changed resulting in an inability to do the job due to those hours?

Update: you all asked about the contract. My friend showed me the contract. In the contract it says, "work hours are 8:30 to 6pm but THIS DOESN'T APPLY to sales reps who are expected to meet minimum sales and schedule is based on meeting the sales goals". (capitalization are for emphasis, not in contract). So, right there in the contract, the expectation is clear: no required schedule whatsoever for sales reps who are meeting sales goals.

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    Does the contract of your friend say anything about flexiable hours? – LaughU Feb 12 at 6:54
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    This is the second or third time you "friend" is taken advantage of and they are not even out of training! You are being scammed or at least trapped. You were promised everything you wanted to have and got a big nothingburger. At some point you will have to see you signed up at a scammer or at least a salesman of the worst kind. If fundamentals of the contract change in the first few days, it's time to quit. – nvoigt Feb 12 at 7:15
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    Boils down to read the contract. – Solar Mike Feb 12 at 7:17
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    "the rest quit or were fired before my friend started." sounds like a red flag in itself. – Mawg says reinstate Monica Feb 12 at 7:34
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    Friend is in an excellent negotiation position because without him, the number of sales people will be zero. – gnasher729 Feb 12 at 16:09
24

8:30 to 5:30 company and expressed how the boss and the sales manager come into work at 6:30 every day. The boss told them to come in at 6:30 am

The manager then went on to say it wouldn't be fair to others who start work at 7:30

worse than the traditional hours of the jobs having large base pay, which they turned down because of early hours and inflexible schedules.

This is a red flag that has legs and arms and is waving other red flags, one in each hand.

First there is the bait and switch. They asked (in the offer), they talked about it, they offered different time schedule. Now they change it.

Second they are moving goals. In combination I call it "DarthVadering" - I am altering the deal/Pray I don't alter it any further. So they are 8.30 company but your friend need to come at 6.30 because it wouldn't be "fair" to others who come at 7.30.

WHY. WHY on earth should any employee act fair toward other employees? Especially for an employee who breaks the company rule of coming in at 8.30.

Because it benefits the manager/boss. Instead of them being fair toward employees, they play them against themselves.

It's not even a matter of "does the contract state flexible hours", because even if it didn't and instead stated "8.30 to 5.30", the manager is breaking that rule already by demanding to come at 6.30.

They are fully aware of the other offers on the market that are better paying with fixed hours. That's why they take advantage on anyone who will take their initial bait and then be soft enough to agree on changes. Thanks to that, the company has low-balled employees by making them work on 100% commissions and work fixed hours. A package of two for the price the employee has to pay.

Run, run from that company. The manager/boss is fixed on extorting the people for their own gains and don't care about offers/contracts/deals.

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    The boss is trying to get him to come in early when the job was advertised as flexible hours. So I'll agree that it's a bait and switch. But I don't agree to running immediately. Rather he should stand up for himself and make it clear that he took the job with the expectation that hours are extremely flexible. So he'll come in and go when he wants. If that's a problem with the boss, then it's time to run. – TheEvilMetal Feb 12 at 8:39
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    @TheEvilMetal I think the answer is correct... Run is the word. – Solar Mike Feb 12 at 8:42
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    @TheEvilMetal Staying and trying to enforce flexible hours could be good idea if I didn't suspect malicious acting. But the "we start at 8.30 come at 6.30" suggest this is exactly what is going on. Extortion. – SZCZERZO KŁY Feb 12 at 9:58
  • Run shouldn't always be the first option, but given that they've only been there a few weeks, running seems most prudent here. – John Spiegel Feb 12 at 14:34
  • What about standing your ground, ignoring the unreasonable requests, and if you don't get paid or get fired sue? Employers cannot actually sue "for any reason." If you are hired explicitly for X when company has zero intention to honor X, they've acted in bad faith. Even better in OP's favor is if they left a different job for this one and are now unemployed because of the company's acting in bad faith. – Aaron Mar 11 at 20:28
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First and foremost your friend should check the contract. If there is anything concerning the hours, they can explain that they are only obeying the contract. Otherwise, I only see two options:

  • If the employer is really as nice as they say, they should check with him if those early morning hours are only temporary. If so make it clear, that flexibility is one of the main reasons why they joined the company.
  • If the employer says, that those hours permanently, then it is time for a job search. But they should keep in mind, that they check the contract. And negotiate, that flexible hours are in the contract.
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    "If the employer is really as nice as they say" then perhaps "the rest quit or were fired before my friend started" would not have happened? – Mawg says reinstate Monica Feb 12 at 7:35
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    My argument is, that if 'The boss is a really nice guy' and the job itself is good, then the friend should a least try to negotiate the hours again. But @MawgsaysreinstateMonica I see your point here. – LaughU Feb 12 at 7:46
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    Checking if the hours are temporary seems like it could be open to abuse. The employer has already seemingly lied once about the hours to get the employee on board, I'd be worried they will make vague promises about temporary hours to get as much work out of them as possible until they quit like the others. If going down this route, I would recommend OP 100% gets any "temporary" change to conditions in writing and with a confirmed end date (and not just a promise to review). – delinear Feb 12 at 9:00
  • If there is anything concerning the hours, they have something to act on what action would they take, specifically, if the contract did mention hours? – dwizum Feb 12 at 14:58
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    @dwizum good point. I tried to make it more clear what I tried to say – LaughU Feb 12 at 15:10
5

Any time I'm in a situation where something changes at work in a way that makes me unhappy, I try to follow a few steps to resolve the issue:

  • Make sure I understand the context of the change. Once in a while I find that I've gotten upset about something that will naturally go away, or isn't a big deal. Although, it sounds like your friend is well past this point.
  • Raise the issue to my boss. Tell them specifically, but calmly, what made me upset. I try to pick my words carefully to make sure I'm giving them an opportunity to solve my problem, rather than just complaining.
  • Consider the response and decide what to do next. Some times, things will change. Other times, it becomes clear that things will not change.
  • If things don't change, and this is important enough to me, it's time to start looking for a new job. But, I try to learn my lesson and take active steps to make sure I don't enter a new workplace with the same issues.

Your friend seems to have made it clear to his boss that he wants flexible hours before this all started, but it's not clear if your friend has clearly and explicitly told their boss that this change will be a problem. If they haven't, that's a good first step. If they have, it may be time to move on.

But if it is time to move on, your friend should take steps to avoid this problem in the future. Besides just asking about hours upfront, it can be helpful to ask other questions,

Do you have any busy times or any seasonality in your sales?

or maybe,

What's the current sales team like? How long have they all worked here?

Sales, as a profession, is notoriously cutthroat. In many cases, all that matters is getting numbers. A job may indeed have "flexible hours" but that usually comes with a caveat of as long as you're meeting your numbers which in most cases means you'll be expected to do what ever it takes to meet your numbers! So, yes, perhaps you can "choose" your work hours, but when you're handed an unrealistically high sales target in a commission-only job, you're essentially "choosing" to work non-stop no matter what in order to earn some money - which is a nice way of saying, you don't really get to choose your hours.

This may seem deceptive, and it is, but it's not surprising: again, sales culture is often cutthroat and focused completely on winning or closing deals. This often applies to hiring processes, as well - sales managers often approach hiring as a sales game, they're trying to hook as many candidates as they can: an unhappy candidate who's producing sales and is only getting paid a commission is an acceptable result. With commission only jobs, there's essentially nothing at stake for the employer: if you hate your job and leave, no big deal. If you're not really that good and only make a few sales, no big deal. They only paid you for the actual numbers, after all.

So, all that said, although your friend is telling you that flexible hours are important to them, your friend may want to think carefully about sales as a career, or at least about how to find a sales job that is paid in a way that actually enables flexibility.

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    +1 I would expect sales working hours, in practice, to be driven mainly by when sales prospects are most available. – Patricia Shanahan Feb 12 at 18:00
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Shorter answer:

His employer is awful. He should quit now. But if he still doesn't want to quit, he should email the owner something like this:

Dear Bob,

6:30 AM to 4:00 PM doesn't work for me. I could do 8:30 AM to 5:30 PM in exchange for a minimum base salary of $15 an hour. But if you want me to start at 6:30 AM, I would need a minimum base salary of $30 an hour that entire day for the extra inconvenience.

As you well know, our original contract stipulated no set hours of any kind and complete flexibility of my schedule since I'm a sales rep. What you're asking for is a complete reversal of those original terms.

Also, I'll need to know if your request is a special one-time occurrence for this week, or if you intend me to work a strict schedule on other weeks or on other dates as well.

Obviously, your friend should quote his own numbers (instead of using mine) and change the wording to fit his situation. And he may want to include some wording regarding his commission. I didn't include anything about that because I'm just not familiar enough with the vocabulary used in those instances.

Longer answer:

In the contract it says, "work hours are 8:30 to 6pm but THIS DOESN'T APPLY to sales reps who are expected to meet minimum sales and schedule is based on meeting the sales goals".

Do you remember your other question about W2 vs. 1099? Kathy cited the FLSA and told us that as an employee, even if he gets zero commission, by law, his employer will be required to pay him minimum wage for those hours worked. That's one key difference between being considered a W2 employee and an actual 1099 contractor.

Now, I did incorporate Kathy's comment and FLSA citation into my answer, but I'm not sure if you ever saw it since you had already accepted my answer by the time she had made the comment.

In other words, I think your friend's employer is planning not to record any of his hours, that's how I think he's planning to get away with not paying him anything (should he not earn enough commission).

Not only his employer is planning not to pay him anything for the hours worked but in a separate question of yours, you also stated, that the contract included a clause stating that your friend's commission would be used to pay back the $15 an hour he received during his training period.

Now, everyone has suggested that your friend should quit. And I'm sure that you've recommended that he quit as well. But if your friend still doesn't want to quit, tell him to at least create a paper trail with the demands from his employer. He shouldn't negotiate with him over the phone. He should negotiate over email (or via SMS if email is not an option).

And over email, he should send the message I suggested. And of course, the boss will be furious, and is likely to call him back on the phone or wait until he sees him in person to respond to him (because he doesn't want his response to become part of the record).

To which, I would recommend that your friend not pick up the phone, and gets a (free) Google Voice phone number, continues to converse in writing, even if he has to do so retroactively at times.

In addition to that, if he ever wants to get paid and have the Department of Labor of his State take his side, he'll need to prove to them that he worked all the hours he did. This will mean maintaining his own private timesheet and maintaining a detailed log of the tasks he does for work. And he'll probably want to supplement that information with an app that tracks his own GPS history, helps him take selfies, tracks work phone calls, etc.

With that said, the prediction I made barely two days ago already came true ahead of schedule. He was promised flexible hours and no set schedule, but now he is required to work a long day and crazy early morning hours.

If we're keeping count, this is the third time that the owner has lied to him and has tried to breach/change the terms of the original contract retroactively. What else needs to happen before he actually quits?

[...]

He should also stay away from any employer that suddenly wants to adversely alter the original contract after 2 weeks of training. If he signs that piece of paper. It will progressively get worse over time. Two weeks later, his employer might demand that he starts buying his own inventory. Two weeks after that, it will be the commission percentage that will be revised down.

Trust me on this one. I've seen it before. It's just the beginning. The owner most likely has excellent charisma and probably promised him the world, but this is starting to look like a predatory business.

Like I said previously, this is never going to end.

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What’s in the contract doesn’t really matter because of two facts: If the employer is not happy with your friend, your friend will be fired. And if your friend isn’t happy with the employer, your friend fires the employer.

So if your friend doesn’t want to start early, and isn’t going to start early, he can go to his employer and say “That’s not what our deal was, and you know it. I’m not going to work these hours. Your choice: I’ll work the hours we agreed verbally, or I’ll find a job elsewhere. I took this job for the hours. If I wanted to work the hours you want me to work, I was offered better jobs with these hours.”

Then it’s up to the employer if he is happy with a sales force of zero. (He might offer to match financially other jobs offering bad hours, but that is unlikely).

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  • But it does matter: employee can collect unemployment benefits, or depending on the totality of the circumstances maybe even sue the employer. If it's merely "we aren't happy with each other anymore, I quit" then that's the end. If it's "You're in breach of a contract, or at least acted in bad faith," then OP has more options. – Aaron Mar 11 at 20:33
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So, right there in the contract, the expectation is clear: no required schedule whatsoever for sales reps who are meeting sales goals.

I am a computer programmer and can thus be literal-minded to an extreme :-)

What it actually says amounts to "the 8:30 to 6 schedule does not apply". The quoted part of the contract tells you nothing about what does apply.

"Meeting sales goals" is kind of vague; the agreed individual employee goals or this month's aspirational goals? And in any case, how's the schedule affected if you have indeed met "the" goals? Maybe you now get to work double hours? Yes, I'm being facetious - but the quoted contract does not say.

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  • The contract has numbers for actual expected sales goals. – workaddict Feb 13 at 4:18
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    @workaddict "schedule is based on meeting the sales goals" can easily be read as the company decides the schedule such that the company sales goals can be met, not that it is up to the discretion of the sales rep to decide his schedule and be fine if he meets his personal goals. Sure the latter could also be an interpretation, but I wouldn't count on the company following that interpretation. It seems someone made a great sales pitch that doesn't exactly align with reality.... – Frank Hopkins Feb 19 at 16:41
  • @FrankHopkins That would be rather deceptive seeing as the company expressed to set your own hours and flexible schedule – workaddict Feb 19 at 20:04
  • @workaddict From your question, the company comes across at the least as unorganized. So it is well possible this is their standard contract and someone forgot or "forgot" to adjust it. Or that they will just read it the way it suits them same as the manager now argues the way that suits them. Perhaps there is more context in the contract that makes this less ambiguous, but the way it is written, I wouldn't be sure this helps me to enforce anything. – Frank Hopkins Feb 19 at 20:09
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This looks like an end-of-relationship type situation (either quitting or being asked to leave). One option is that your friend simply stand firm. Don't work the hours other than agreed to (I agree that it makes sense to communicate this in a paper trail). Let the boss say whatever they want about it. Work as you agreed to, and let them decide if they dislike your actions enough to fire you.

I'm not saying this is "clearly the best and only true option". Rather, I am bringing up the overlooked fact that sometimes simply defying an idiotic requirement works (boss might be bluffing and in actuality can't affort to lose the employee), and if the relationship looks like it's ending anyway, you have less to lose.

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