In California, a commissioned salesperson who earns more than one-half of his or her compensation from commissions, either by flat fee per sale or as a percentage of each sale, is exempt from overtime. That is, the employee does not qualify for overtime.
I take the position that for each payperiod in which the employee does not earn one half of his or her compensation as commissions, the employee is entitled to overtime for that pay-period. I argue too that the overtime rate is to be calculated as the total pay for that payperiod divided by 80 hours (2 working weeks of 40 hours each, without regard to total hours actually worked). This hourly rate is then multiplied by 1.5 for each hour over 8 and under 12, and double time if over 12 in a day. [Federal law, unlike CA law, allows overtime only for more than 40 hours in a week].
California Labor Code Section 204.1 and Cal. Code Regs, tit. 8, Sec. 11070.