How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Patrick, Esq. Your Own Question
Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 10905
Experience:  Significant experience in all areas of employment law.
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

Hi, I left a commission only position in Dec. and I am still

This answer was rated:

Hi, I left a commission only position in Dec. and I am still waiting for payment from my previous employer. We had a verbal (I know stupid of me) agreement as to what my compensation would be. Now they are saying they agreed to something different and are trying to claim expenses against my earnings. I was working 60 hr weeks at times in their offices using all their resources and they are saying I was an independent contractor. I am due about 12K in commissions. I was never paid overtime and I believe as it stands now I was paid less than minimum wadge during the 60 hr work weeks. I do have past paychecks establishing what I believe is a president for how I had been paid until the time I resigned and they stopped paying me what I was owed. My reason for leaving was I was told by the company owner if I didn't start basically bullying an independent contractor to change their agreed upon duties and make them take on more, I would be asked to leave. I said I didn't want to get into the middle of their issue as I was not having it myself. Their response was to constantly be on me about it and I finally left when I could not take the stress anymore. What are your words of wisdom?
Hello and thank you for entrusting me to answer your question. I am truly sorry to hear about your difficulties in getting paid.

Oral employment contracts are permissible and entirely enforceable. The challenge, as you are now learning, is in proving what the terms of an oral contract are when the employer decides they "remember" things differently. Fortunately, you have past paychecks, which will be revealing of how your pay was actually calculated, and thus, supportive of a claim for unpaid commissions.

As an idependent contractor, your recourse for the non-payment of wages is extremely limited. This is because the vast protections and remedies afforded through the Labor Code apply only to employees. As a contractor, all you can do is go to court and sue on a theory of breach of contract. This doesn't mean you can't get your money, but being classified as an employee is highly preferable under these circumstances.

Fortunate for you, California courts do not take kindly to the misclassification of employees as contractors. This is something that unscrupulous employers frequently do to avoid the vast protections the Labor Code affords to employees, alluded to above.

Generally speaking, a worker will be properly classified as an employee if the person to whom service is rendered retains significant control over the manner and means by which the work is performed. This, ultimately, is the relevant inquiry. However, additional factors frequently taken into consideration include the following:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, courts may find an employer-employee relationship if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary.

On the basis of the limited facts you describe, it would seem you have a strong argument for misclassification. If the Labor Board determines that you were improperly classified as a contractor, your employer will be subject to a variety of fines. Assuming you can prove that you have been shorted on commissions owed, your employer will also be subject to a penalty assessment for the late payment of final wages--an entitlement afforded only to "employees." Finally barring an exemption from overtime, your classification as an "employee" would entitle you to overtime for all hours worked in excess of 8 per day or 40 per week (contractors do not receive overtime).

The first step here is probably to file a claim with the Department of Labor Standards Enforcement alleging both misclassiciation as a contractor and unpaid wages and overtime. To file a wage claim with the DLSE, visit this link:

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Patrick, Esq., Lawyer
Satisfied Customers: 10905
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

Given the complexity of the matter, you may want to retain a local employment law attorney. You can find one here:

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service.

This is the only way I receive any credit for the answers I provide and so is very important to me.

Kindest regards.
Customer: replied 3 years ago.

Sorry, I'm confused... did you answer my reply? or was the "given the complexity of the matter...." the response to my reply.

I did not receive any replies from you. Are you sure it posted properly? All I received was your initial question. My followup answer was simply additional information that I thought you would find useful.

If you posted a reply, please be so kind as to repost it and I will do my best to address your concerns.

Thank you and sorry for any technical problems.
Customer: replied 3 years ago.

Oh, No problem,


My question was, if you thought there would be any issue with me sending (I haven't yet) the employer over some articles on California Law so they know what they are getting themselves into. I have drafted an e-mail since they wont speak to me on the phone, where I out line what the bumpy road is going to look like. I took a little creative license and said that clients and strategic alliances could be called to be deposed to establish how much work I did on each file that went through the office while I was there, so as to establish a president of pay per work done on files. It was a sliding scale if I did 50% or more of the work on a file I would get 50% of the commission. Other files that I did nothing to minimal amount of work on I would get paid $250.00+. So for every file that came through the office, if I touched it or not, I was to get paid minimum of $250.00


Also do you think I have a harassment claim for the bullying and stress that untimely forced me to quit? I have the person who they asked me to bully and my husband at the very least that would back up my claim.


I really just want to spook this company into paying me what I am owed. I would rather spend my time on other things,but I will take it to the mat if I have to.


PS would you be willing to review my potential e-mail to them to let me know if I am on a slippery slope?


Thank you very much for your reply and your rating of my service. I am happy to address your followup questions.

It would not be a bad idea to let your employer know that you believe they are in violation of the law; however, citing articles tends not to be very persuisaive or intimidating. If it were me, I would start by telling them that Labor Code Section 3357 presumes all workers to be employees, absent a showing to the contrary. I would then provide them with a link or printout to this EDD worksheet, which enumerates the criteria for employee versus contractor status: rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDYQFjAA&,d.cGE Finally, I would explain that employers who are found to have misclassified workers will be faced with stiff penalties that may include any or all of the following:

- Stop orders and penalty assessments pursuant to Labor Code section 3710.1;

- Liability for overtime premium, meal period pay, and other remedies available to employees under the Labor Code and Orders of the Industrial Welfare Commission;

- Exposure for tort liability for injuries suffered by employees when workers compensation insurance is not secured (LC section 3706);

- Exposure for unfair business practices (B&P section 17200);

- Tax liability and penalties;

- Criminal liability (LC section 3700.5)

The legal citations will be especially persuasive.

As for the bullying and harassment, there is no law that prohibits such conduct unless the basis for it is an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. So, while it would be illegal for an employer to say "You are a worthless [racial epithet]," it would not be illegal for them to say "you are a worthless employee."

As for your request about reviewing your email, here on Just Answer we are limited to providing information about the law and cannot provide document review or drafting services. If you have any specific legal questions about your email, though, I would be happy to address them for you.

I hope this helps, and good luck.
Customer: replied 3 years ago.

Just wanted to say Thank you, Thank you, Thank you!

You are very welcome. It makes my day to know I really helped someone.
Customer: replied 3 years ago.

You really have, It has given me the confidence to move forward and not be afraid. I know I am in the right, it is just difficult. Thank you again!

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Previous | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK

Meet The Experts:

  • LawTalk



    Satisfied Customers:

    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • LawTalk's Avatar



    Satisfied Customers:

    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • Tina's Avatar



    Satisfied Customers:

    JD, 17 years experience & recognized by ABA for excellence in employment law.
  • Brandon, Esq.'s Avatar

    Brandon, Esq.


    Satisfied Customers:

    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • melissamesq's Avatar



    Satisfied Customers:

    Represent clients to maximum recovery in employment cases.
  • /img/opt/shirt.png Attorney2020's Avatar



    Satisfied Customers:

    I have significant experience in employment law.
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel


    Satisfied Customers:

    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.

Related California Employment Law Questions