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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11250
Experience:  Significant experience in all areas of employment law.
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I currently work small consulting company. I have been

Customer Question

I currently work for a small consulting company. I have been interviewing outside the company because the pay is not what I was told it would be. My employer has told others that he has the right to clawback your entire pay if you stay less than a year. Is that legal?
They already have as a policy that they don't pay anyone until they get paid for the work you do and based on billing cycles, that means that new consultants don't earn anything for six weeks. I live in the State of Washington
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Are you a commission based employee? Do you receive any sort of hourly wage? What does your contract say about your employer's right to "claw back" wages? Lastly, what do you mean when you say that the pay is not what you were told it would be? I know, it's a lot of questions, but I need this additional information in order to assist you.

I very much look forward to helping you on this matter.

Customer: replied 1 year ago.
Currently the salary has a base plus I get an additional rate when my time is billable, when my team's time is billable and a percentage of the contract deals that I close. I was not expected to generate sales, only to help close them. I was told that in total these various items would be close to a target. However, since joining nearly 4 months ago, I have come to learn that the sales pipeline is far, far lower than what they presented and the sales team spends little to no time selling the services my team provides. This essentially has meant that I'm getting no real commissions (from 10s of thousands a year to a few hundred). The net result is my pay has fallen by 30% from my prior position. When you combine this with not receiving any pay for 6 weeks, after 4 months, I have essentially have seen my pay nearly cut in half.
Expert:  Patrick, Esq. replied 1 year ago.

Thank you. What does your contract say about your employer's right to "claw back" wages? Does it address that?

Customer: replied 1 year ago.
There is nothing in there about claw back. The employer just says it is his right. What I find odd about this is that since he does not pay anyone for the hours they work until those invoices for those hours have been paid (a six week cycle), when someone quits, he continues to collect their invoices for 6 weeks paying them nothing.
Expert:  Patrick, Esq. replied 1 year ago.

Thank you. A clause in your employment contract which EXPRESSLY entitled your employer to claw back some portion of your wages if you leave before a year might have been enforceable, depending on its specific terms. However, it would absolutely need to be clear in your contract that your employer had this authority. In the absence of a clear provision so stating, your employer cannot simply "decide" to do this to punish employees for leaving before one year.

So, if your employer does deduct anything from your earned wages, you could definitely file a wage claim to recoup that sum. The best course of action may be to quit on pay day--that way your employer cannot withhold wages that you've already earned, or at least the amount they are able to withhold is small because you were just paid.

I hope that you find this information helpful. 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 moving forward.

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