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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 111469
Experience:  20+ Years of Employment Law Experience
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Customer Question

I am looking for advice from an attorney familiar with employment laws in the state of West Virginia. I've worked for my current employer ( a company run by two brothers) since the fall of 2013, there are three elements to my compensation; salary, monthly commission and reimbursement for out of pocket medical expenses for my family (I am on my spouse’s plan but my employer reimburses for our out of pocket premiums, copays, deductibles, etc.) About ten months ago my commission reports started to sporadically not be provided. Since they have a reputation of being late with the reports, it didn’t raise a red flag with me. Commissions were sporadically arriving in my payroll checks but I had no visibility to which months they were for but was later able to determine which based on sales and the commission reports I did receive. I also noticed the monthly medical reimbursements I submitted did not get paid. At that point I went back to double check and found there were several missing months of both. I have been in correspondence by email and in person with the two brothers to try to get this resolved. One keeps reassuring me they will look at it, the other who is never available in person (but is the one who writes the checks) has never responded to my emails or notes. I started inquiring the first week of January and now there are additional months in 2015 not being paid, which I immediately call to their attention. To date I am missing 7/14, 10/14, 2/15, 4/15 commissions and 8/14, 10/14, 1/15 med expense reimbursements (I have a commission report for 7/14 but no payment). I just submitted 2/15 and 3/15 med expenses yesterday along with an email telling them that I did not receive April commissions on this past pay, but I have no hope of getting either. To date this accounts for over $15k in total.
I am obviously starting the job search process but that may take six months in my field. My questions are: 1) What chances do I have of getting this and future missing money once I finally leave if I take them to court? 2) What documentation or actions should I take now to reaffirm my position for this later? I have all the emails I’ve sent and the replies (from the one brother how does reply) as well as all pay stubs which show no commission payment.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under the WV Wage Act and the US Fair Labor Standards Act, the employer must pay employee's all wages when due. If the employer is not properly paying wages and is withholding commissions when do, then you have a right to file suit against the employer for breach of contract and for non-payment of wages. Under the wage act and FLSA, intentional and malicious non-payment of wages can entitle you to up to 3 times the amount due as damages, plus attorney's fees.
You need to get copies or proof of how much is due, including printouts or records of your sales on which commission is due. That is the evidence you would need in this case to prove what is due.