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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I voluntarily terminated my employment with a 2 week notice at the end of April 2012. I w

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I voluntarily terminated my employment with a 2 week notice at the end of April 2012. I was provided a "final paycheck" 6 days later minus 20 hours of what I thought I should have in vacation hours. I have filed a vacation and late final paycheck claim, I also
included in the same a claim for a "minimum guaranteed $5k bonus" for fiscal year 2012 which was included in my offer letter in 2011. My employee offer letter does not specifically state that I must work for a definitive period of time in fiscal year 2012 but that the bonus would be at the discretion of an Accounting Council Group and depending on business and personal performance (which I never received specific performance metrics that had to be met). This was really just another way of meeting an annual salary figure that was negotiated for this year of employment. I believe I am entitled to all or a prorated portion of the bonus. Your opinion please.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about these difficulties you have encountered getting paid by your former employer.

First, you should know that timely payment of final wages is a legal requirement, and if you gave more than 72 hours notice of your departure, final wages would have been due immediately (otherwise they would have been due within 72 hours of your termination). Vacation pay constitutes a "wage" for the purpose of this law, so failure to pay vacation upon termination would also be a violation.

Failure to pay final wages in a timely fashion will result in the imposition of a penalty against the employer in the amount of the employee's daily rate of pay for each day that final payment of wages goes unpaid.

Knowing the above, bonuses are generally divided into two categories--mandatory and discretionary. A mandatory bonus MUST be paid provided the conditions expressly set out for receiving it have been satisfied. An example of a mandatory bonus would be an agreement that "Employee X gets $1,000 if he sells more than 100 widgets int he month of January." Employee X either satisfies the conditions for the bonus or he does not, and if he does the bonus MUST be paid.

There is never a requirement to pay a discretionary bonus. No "fairness" argument can be applied. If the employer does not want to pay the bonus, he or she retains absolute discretion to deny such payment.

Thus, the unfortunate botXXXXX XXXXXne is that if an employee's contract states that their bonus will be awarded "at the discretion of" the employer," no law exists that would compel the employer to pay it.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 2 years ago.
Another question please. Even though it was a minimum guaranteed bonus and at the discretion of Accounting Council? This was really negotiated upfront as part of my annual salary because at one point in the negotiations, the hiring manager was offering for to to give up some of the "guaranteed bonus" as take home pay in lieu of negotiating more of a salary increase. Also, I would think that I would have an opportunity for the results of the discretionary decision to not pay, after all I did contribute 10 months to the effort. Thank you again. Great info thus far.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for your reply.

A bonus cannot be both discretionary and guaranteed, as "discretionary" implies it may be withheld and guaranteed means it must be paid. The bonus is one or the other but cannot be both.

If the bonus was only verbally "guaranteed," then the written contract describing the bonus as "discretionary" would make it such, as written contracts generally supersede any previous or contemporaneous oral statements that contradict the terms contained within the contract.

The the bonus was guaranteed in writing, it would be up to the Department of Labor to decide which written provision the parties intended to give force and effect.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
Patrick, Esq., Lawyer
Satisfied Customers: 8313
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.