California law prohibits an employer from taking back commissions which are fully earned. Cal. Labor Code § 221; Harris v. Investor's Business Daily, Inc.
(2006) 138 CA4th 28, 40.
Whether or not commissions are fully earned is a mixed question of fact and law, because while the contract of employment generally controls whether or not the employee has done everything necessary to earn a commission, a court will not permit an employer to structure a commission agreement in a manner that in substance allows the employer to take back an earned commission.
Based on your alleged facts (which are extremely complex), it would appear that you have earned certain commissions in a prior pay period, and you have been paid on those commissions. Then, during a subsequent pay period, the employer seems to be commingling previous earnings with new earnings to create a new commission obligation. The result of this, in my opinion, is to grant you new commissions on previous earnings (sort of a "residual" payment as would exist in the motion picture or tv industry), in addition to commmissions on new earnings.
In my opinion, the residual payment is earned income, which cannot be reversed by the employer, because you already earned the money in the past. The fact that you were already paid for those commissions once is irrelevant, because the employer is allowing you to use them again. By conditioning the "residual" payment on a certain amount of new business, the employer has created a system under which it can take back the residual. This would be like only earning the residual for a tv show, if the actor performs in 10 new tv shows. One thing has nothing to do with the other. So, I think you have a valid complaint here.
Concerning the new business, I see a different argument. Pretend you are a car salesperson. You sell nine vehicles during the month, and you receive $0 commissions. But, if you sell 10 vehicles you receive commissions on all 10 vehicle sales. The employer has created a threshold of business that effectively makes it impossible for you to earn money on revenue to the employer, which you actually earned. It doesn't matter that sale #1 may have been for a Rolls Royce, and that #2-10 were for a $500 salvage car. You don't get paid anything for selling the Rolls, unless you sell the #10 junker. To me, this is an unconscionable (shockingly unfair) agreement, which a court may not enforce. The counterargument is that you are a highly-compensated employee who has bargaining leverage that is not available to the typical worker. In sum, it's a judgment call, and so you would have to bring a wage claim or lawsuit against the employer to determine whether or not the contract is actually depriving you of earned commissions which the employer has cleverly contrived various hurdles by which it can take back your earnings.
I realize that you have characterized your circumstances as a combined deal, and that the vacation issue is somehow the key to whether or not you receive commissions -- along with the fact that all employees are not treated equally concerning the vacation period protection. However, I view these issues as irrelevant to whether or not you have a claim, and I believe that a court would do similarly, because the real issue is not the vacation -- it's the 10 new business entries as a bar to any commission payment on the residual.
If you want to let the government try to figure out the mess, then you can file a complaint with the Division of Labor Standards Enforcement (DLSE).
The agency may be reluctant to take your case -- because there are loads of minimum wage workers in the queue at any given instant. But, you have the same right to file a wage claim as anyone else.
So, you may get more personal attention by hiring a private employment rights attorney. See this link for a referral
There is one good reason for starting the case through the DLSE: it will immunize you from being terminated, under the "whistleblower law" (Cal. Labor Code 1102.5). And, if the goverment decides that your case is too complicated for the administrative process, then you can hire a lawyer and appeal to the Superior Court and maintain the immunity from termination.
I think that about covers the issues. Happy Holidays.
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