Commission Pay Laws in Florida: Your Rights as a Commission Worker

Under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206, commissioned employees are entitled to at least the federal minimum wage ($7.25 per hour) for all hours worked. Employers cannot use a commission-only structure that results in average hourly earnings below the minimum wage. The EEOC enforces compliance for covered employers with 15 or more employees.

Commissions must be paid regularly, and the Department of Labor expects payment by the next regular payday or as specified in a written agreement. Deductions from commissions for returns, chargebacks, or customer non-payment are permissible only if they do not reduce the employee's average pay below the minimum wage for the pay period.

Overtime pay (if applicable) is calculated based on total compensation, including commissions. The federal baseline does not require a written commission agreement, but establishing one in writing protects both employer and employee by clarifying when commissions are earned and how they will be calculated.

Florida Statutes section 448.095 establishes stricter requirements than federal law by mandating that all commission agreements be in writing. This written agreement must specify how commissions will be calculated, when they will be paid, and the conditions under which they may be forfeited.

Florida's minimum wage is set by constitutional amendment and adjusted annually for inflation. As of 2024, Florida's minimum wage is $15.00 per hour, which is significantly higher than the federal minimum wage of $7.25. This means Florida employers must ensure that commissioned employees earn at least $15.00 per hour when their total compensation is averaged over the pay period.

Unlike federal law, which only requires that compensation average to minimum wage across the pay period, Florida prohibits commission agreements that include unilateral forfeiture provisions or that fail to specify payment conditions clearly. Florida also applies its wage and hour laws (section 448.110) to commissioned employees, meaning overtime rules apply if an employee works more than 40 hours per week, and overtime must be calculated on the basis of total compensation including commissions.

Florida Statutes section 542.335 addresses non-compete agreements in commission contracts. While non-competes can be enforceable in Florida, they must be reasonable in time, area, and line of business. Courts scrutinize non-competes tied to commission clawbacks carefully—if an employer attempts to claw back commissions earned to enforce a non-compete, Florida courts may find this unreasonable and unenforceable.

Florida's state law provides stronger protections than federal law in three key ways: (1) the written agreement requirement creates documentation protecting employees, (2) the higher minimum wage standard ensures higher baseline compensation, and (3) the restrictions on forfeiture and clawback provisions limit employer overreach in commission structures.

Commission agreements are not required for independent contractors, who are not entitled to minimum wage or overtime protections. However, Florida courts apply strict tests to classify workers as independent contractors—misclassification exposes employers to wage liability.

Salespersons who work on a commission-only basis for certain industries (retail, motor vehicles) may be subject to specific statutory rules under Florida Statutes section 493.6109 for motor vehicle dealers. The written agreement requirement applies uniformly, but industries with specialized regulation may have additional requirements.

If a commission agreement is unilaterally modified by the employer after the employee has already earned commissions, Florida law treats earned commissions as vested wages. Employers cannot unilaterally reduce the commission rate for already-performed work. However, employers may change commission structures prospectively with notice, as long as future compensation still meets minimum wage requirements.

Commissions may be forfeited or clawed back if the written agreement explicitly states the conditions for forfeiture (e.g., if a customer cancels and the sale is reversed), but only if the clawback does not reduce the employee's total pay for the pay period below the minimum wage. Forfeiture provisions that are vague or one-sided may be struck down as unconscionable under Florida law.

Employees classified as exempt (executive, administrative, or professional) are generally not entitled to overtime, but they may still receive commissions. However, if an exempt employee's total compensation structure includes significant variable commission components, the employer must ensure the arrangement is consistent with exempt status under the FLSA.

Step 1: Document All Commission Communications. Keep copies of all commission agreements, emails, pay stubs, commission statements, and correspondence about how commissions are calculated. Document the dates you performed the work that earned the commission, the commission rate offered, and any amounts actually paid. Save screenshots of commission tracking systems or dashboards. This documentation is critical because Florida requires written agreements, and employers often fail to provide them or provide vague terms.

Step 2: Raise the Issue Internally. If you believe your commission pay is incorrect, missing, or falls below minimum wage, request a written explanation from your manager or HR department. Send a written email asking for clarification on how your commissions were calculated for the disputed pay period, what the rate was, and why payment was delayed or reduced. Keep a copy of this email. Ask your employer to provide the original written commission agreement. Many disputes are resolved quickly once the employee formally documents the concern.

Step 3: File a Complaint with the Florida Department of Economic Opportunity (DEO). Florida's Division of Workers' Compensation and Labor Departments handle wage claims. You can file a wage claim online at FloridaJobs.org or call the Wage and Hour Section at (850) 245-7105. You do not need an attorney to file. Provide your employer's name, the dates of the alleged underpayment, the commission rate you were promised, and copies of your documentation. The deadline to file is generally within a reasonable time but varies by circumstance; consult the agency for your situation. The DEO will investigate within 30 days and may attempt to resolve the claim administratively.

Step 4: Understand the Investigation Process. Once filed, the DEO will contact your employer and request payroll records, commission agreements, and their account of the calculation. The investigation typically takes 30 to 90 days. You may be asked to provide additional documentation or clarification. If the DEO finds a violation, it may issue a determination requiring your employer to pay the back wages plus interest. Your employer has the right to challenge the determination, which may escalate the case.

Step 5: Consult an Attorney if the Amount is Substantial or Employer Contests. If the DEO investigation is not resolved favorably, or if your employer contests the determination, consult an employment law attorney in Florida. Many offer free initial consultations. If you have a claim for unpaid commissions exceeding $2,500 or if your employer retaliates after you file, an attorney can file a civil lawsuit in Florida state court or pursue a federal FLSA claim, which may result in liquidated damages (double the unpaid amount) and attorney's fees. An attorney is essential if your employer claims commissions were forfeited under the agreement but the agreement is unclear or the forfeiture would reduce your pay below minimum wage.