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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7651
Experience:  Significant experience in all areas of employment law.
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Hi, I left a commission only position in Dec. and I am still

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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?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
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: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

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: 7651
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 1 year ago.
MJ,

Given the complexity of the matter, you may want to retain a local employment law attorney. You can find one here:http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

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 1 year ago.

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

Expert:  Patrick, Esq. replied 1 year ago.
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 1 year 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?

Expert:  Patrick, Esq. replied 1 year ago.
MJ,

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: http://www.google.com/url?sa=t& rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDYQFjAA&url=http%3A%2F%2Fwww.edd.ca.gov%2Fpdf_pub_ctr%2Fde38.pdf&ei=YicTUbr9DOiviQKZ7IGIDA&usg=AFQjCNHFXpKTvOiRcOZwq7fojH-4c0k2nw&bvm=bv.42080656,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 1 year ago.

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

Expert:  Patrick, Esq. replied 1 year ago.
You are very welcome. It makes my day to know I really helped someone.
Customer: replied 1 year 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!

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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.