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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11248
Experience:  Significant experience in all areas of employment law.
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Customer Question

I am an hourly employee working for a collection agency who has collectors working on commission. Recently, the company has decided to hold new accounts for 15 days before giving the account to a collector. While the account is on hold status they are making me answer the phone for these new accounts and collect the money without compensation. The company is not paying out commissions on these new accounts. I think I'm being used.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 3 years ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about this understandably frustrating situation.

Please allow me to confirm my understanding of the facts. You are an hourly employee and are not paid on commission. Recently, however, your company has instituted a policy that puts new accounts on hold for 15 days before being referred to an actual collector. This has resulted in additional work for you, but you do not receive any portion of the collector's commission. You are, however, still paid your hourly wage.

Is this a correct summary of the problem? If so, is your question whether this is legal?

I very much look forward to assisting you regarding this matter.
Customer: replied 3 years ago.
This is correct. Also the inside sales aspects of not receiving anything
Expert:  Patrick, Esq. replied 3 years ago.
Karen,

Thank you very much for confirming my understanding of the facts.

While I completely appreciate your concerns and frustrations, I must tell you that the conduct you describe does not appear to violate any state or federal labor laws, despite being unfair.

Employers are free to require hourly employees to take on new job responsibilities without providing additional compensation. This freedom stems from the doctrine of "at will" employment codified at Labor Code 2922, which permits employers to terminate the employment relationship at any time for any non-discriminatory reason. Since employers would be free to simply fire and rehire employees pursuant to a different job description, courts have reasoned that employers are equally free to simply change an employee's job description, as this would accomplish the exact same thing. The fact that you are now essentially performing work for which commissioned employees would receive a commission on does not change this analysis.

The only conceivable basis for a claim would be that you are being denied commissions for a discriminatory reason. For example, if all the collectors are of a particular ethnicity and you believe that you are being denied commissions due to your race and no other factor, that would be illegal. However, you would need to prove a discriminatory motive, and that would seem to be very difficult to do, since there appears to already be a justification for not paying you commisisons (the fact you are an hourly employee and fall within a different job classification within the company). I realize this justification is not a fair one, but you would need to argue that the true reason you are not receiving commissions is a protected trait such as race or religion, which would give rise to a discrimination complaint.

Absent a showing of discriminatory intent, the doctrine of at will employment would permit your employer to require you to take on these additional job duties with no extra pay, since the terms of employment can be changed at any time and there is no limit to the amount of work hourly workers can be required to take on.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

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.

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