I am an employee. The S Corp is separate....and part of the reason I formed it was that I knew I might have to try to find some outside ways of finding a means to pay bills. The S Corp. has nothing to do with my job in the electronic display business.
Hi John, Thanks for the additional information. Clearly the failure of the employer to pay both your salary and any commissions due under company policy for commissions is in violation of CA and federal laws. You may apply to the CA Department of Labor for assistance, or you may sue the employer directly for the unpaid wages (CA considers commissions due as wages, just as they do salaries).
You may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. Additionally, you will be entitled to be awarded costs of the court as well as your attorney fees incurred in filing suit and litigating it against your employer. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html
A recent law signed by the CA Governor, allows CA employees to seek liquidated damages when making a claim to the Division of Labor Standards Enforcement (DLSE), just as they could if suing in court initially. So in CA whether you make a claim to the Division of Labor Standards Enforcement, or file an action in court on your own, you may seek liquidated damages. Here is a link to an article on the change---good for CA employees, but bad for CA employers: http://www.shawvalenza.com/publications.php?id=343
The award of liquidated damages is mandatory unless employer shows that (A) act or omission giving rise to violation was in good faith and (B) the employer had reasonable grounds for believing that act or omission was not a violation of 29 U.S.C.A. § 216(b). This is a very difficult standard for the employer to meet.
Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:
You may reply back to me again if you have additional questions, and I will continue to assist you. I wish you the best in your future, Doug
Would I file the claim and file the suit separately, or simultaneously....Or, should I just file the claim and see what the reaction is and then file suit? According to what I've heard, if I just file the claim it normally goes through a review process and the state tries to get the 2 parties together to "resolve" it. I actually think that they would count on this being an ability by the company to stall a little longer to see if the sales happen to come through. In addition, the Equity Partner Fund that owns 97% of the company might decide to bankrupt the company and just walk away. However, I'm not sure they would do this, because they have invested a couple million dollars over the past 4-5 years and also know that their are some possible orders coming in that would finally give them the chance to make their money back. If they bankrupted the company, I'm not sure if I could go after them directly. ??
If I file with Labor Board vs. File Suit what would probably be the time difference....assuming the company/partners decided to settle?
That's all good to know.....You seem very knowledgeable about this process. I actually live in Colorado, even though the employer is in CA. Would I be able to hire you if I wanted to pursue a law suit?
You're welcome....One last question. Where would I try to find an attorney who specializes in this kind of law? If it doesn't go to court, would I have to pay the legal fees, or is the company only liable to pay them if it goes to court?
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