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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 recently voluntarily left my employer based in California

Resolved Question:

I recently voluntarily left my employer based in California who said they would pay me $4K in commissions I earned before I left. This week an old co-worker told me that someone posted negative feedback about the company on Glassdoor.com and they think it was me.
Could the employer for any reason other than the deals fell through on my commissions legally not pay me now?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good afternoon and thank you for entrusting me to answer your question. I will do everything I can to assist you.

Commissions are a form of wages and California law strictly regulates and enforces an employers obligation to pay earned wages. Even if you had posted negative feedback online, that would not entitle your employer to hold back what you are owed. Moreover, assuming that your comments are either true statements of fact or statements of opinion, the comments would not be legally actionable in their own right anyway.

Commissions are "earned" when vested, and employers are free to draft contracts which specify when vesting will occur. As of January 2013, the law requires all employers to have written contracts which state when commissioned employees "vest" their commissions, so check your contract and see when your commissions become earned. The most common "vesting trigger" is receipt of payment on the sale.

If the trigger for vesting has already occurred, your employer has a legal obligation to pay that money within 72 hours after you give notice of your intent to quit or your last day or employment, whichever is later. If vesting does not occur until after this deadline for the payment of final wages, your employer must pay your commissions immediately upon their vesting.

If your employer fails to pay you your commissions pursuant to the above timelines, penalties may be imposed against them pursuant to Labor Code 203. Specifically, failure to pay a departing employee's final wages in a timely fashion will typically result in the assessment of a penalty in the amount of the employee's daily rate of pay for each day the wages go unpaid up to 30 days.

So for example, if an employee who makes $100 a day is not paid his final wages until 20 days after they are due, he would be entitled to a $2,000 penalty from his employer in addition to the earned wages.

A claim for your unpaid commissions and potentially any applicable penalties can be made by filing with the Department of Labor Standards Enforcement. 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 1 year ago.

One quick clarification. So vesting would occur when the company I worked for calls the client and verifies that the candidate I placed is still working there 30 days after his/her start date? This is when commissions are supposed to be paid. Thus the employer would confirm and I get paid during the next pay period which would be 8/15/13, correct? Thank you!

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

You are partially correct, but the law is actually more in your favor that you are thinking.

You do not have to wait until the next regularly scheduled pay period to get paid. If your commissions "vest" prior to that designated payday, your employer has a legal obligation to pay them to you immediately or be charged with penalties pursuant to Labor Code 203 as described above.

Basically, the determining factor is when your commissions vest at this point--it has nothing to do with regularly scheduled paydays.

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 so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7663
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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Patrick, Esq.
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