1. is there anything that i can do to get my bonus paid?
A: Assuming that you are entitled to the bonus, then you can either sue (in small claims, if the bonus is $7,500 or less
), or file a complaint with the Labor Commissioner
. The question is whether or not you are entitled to the bonus.
2. The way i read the regulation, they are in violation for not paying overtime rate for its associates after calculating bonus into it?
A: I'm not aware of any single regulation that definitively resolves this issue. My understanding is that the issue is extremely uncertain on each side. If you have a citation to legal authority that contradicts my understanding, please let me know.
First, what you and your former employer describe as a bonus, seems to me not to be one.
The term "bonus" is generally equated with "incentive compensation." Incentive compensation, is generally understood as an inducement to employees to procure efficient and faithful service. Only when an employee satisfies the condition(s) precedent to receiving incentive compensation, which often includes remaining employed for a particular period of time, can that employee be said to have earned the incentive compensation (thereby necessitating payment upon resignation or termination). An employee who voluntarily leaves his employment before the bonus calculation date is not entitled to receive it. Schachter v. Citigroup, Inc. (2009) 47 Cal. 4th 610
Based upon the cited case law, and your statement that you resigned, you would not be entitled to the bonus. However, your statement that the bonus was a function of sales volume divided by years of service, suggests a commission to me -- not a bonus. This is because the value of the bonus increases with the amount of sales -- not with the amount of years of service.
Assuming that a court were to agree that your bonus is a disguised commission, then the case law above is irrelevant to the analysis. Instead, your right to commissions “must be governed by the provisions of the [employment agreement].” Nein v. HostPro, Inc., 174 Cal. App. 4th 833, 95 Cal. Rptr. 3d 34 (June 3, 2009).
Since I do not know exactly what your commission agreement was, I cannot analyze its terms and conditions. However, there is case law to support the payment of commissions where an employee is discharged in order to avoid payment. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal. App. 4th 1137
. Here, again, you have the problem that you resigned, but your resignation could be deemed with good cause, considering what you allege was a 27% reduction in pay. So, I can see how a court could conclude that the timing of the pay cut was systematically designed to cause employees to quit as a means of avoiding payment of a pending "longevity bonus" (which is really a disguised commission).
That is how I would argue this in court. There is one problem with all of this. Small claims court judges are not very interested in complex legal arguments. They like clean straightforward positions. Also, small claims courts do not generally entertain submission of a "trial brief," to explain the parties legal position. This makes small claims a poor forum for your claim. Conversely, a Labor Commissioner complaint could take a very long time to resolve, assuming that it's ever resolved (could take a year just to get a hearing).
Obviously, if your commissions are very large, then there might be a rationale for hiring a lawyer and suing in Superior Court. If not, then you may be stuck with a small claims suit, and you'll just have to take your chances that you can get the court to read a brief that you submit on the law, containing a discussion such as I have presented here. If you intend to try this, then you must serve a copy of the brief on the other party at least 16 court days prior to the hearing (see this link for a calculator)
Thanks for the interesting case info. You probably didn't realize just what sort of complex issue you have stumbled into.
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