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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: California Employment Law
Satisfied Customers: 19311
Experience:  B.A.; M.B.A.; J.D.
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I am currently on total temporary dsability from a workplace

Customer Question

I am currently on total temporary dsability from a workplace injury, and am currently receiving workmen's compensation insurance and state disability insurance, and have filed a claim with DLSE over unpaid wages of approximately $36,000 - which is referred to in the organization's language as commission - for Q-1 2015. I have already had the conference, and my employer sent a labor law attorney and I represented myself.
My employer has a sales incentive plan that states in the event of a leave of absence (due to injury, pregnancy, sick family member, etc.); the sales incentive is paid and pro-rated based on the total number of days that you worked within the quarter, and payment will be made only upon return. My company said they paid me $18k paid though Feb 2, 2015 when I went on total temporary disability, due to financial hardship.
I still contend, that I am owed the balance of the sales incentive payment ($36,000) because the reason I was unable to work was from a job injury and my employer workmen's compensation insurer, not providing me with the necessary medical care to get better. I also contend that the sales incentive is commission pay, which is considered wages, and should be paid, due to California Labor Code 204. My employer says that I am not eligible for the remaining $36k because due to the sales incentive plan, that I had to be there to sell and service the customer (even though the compensation is based on a previously closed sale). I am trying to prepare for the hearing, and want to see if anyone is interested in helping me and has any recommendations or suggestions.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Phillips Esq. replied 1 year ago.

If this is a commission and it has been earned—based on a closed sale, then you must be paid the remaining balance. Instead of treating it as a commission, your employer appears to be treating it as a bonus, which is not a guaranteed pay at the discretion of the employer. So, your argument should center on the part that this is an earned commission and thus must be paid to you regardless of whether you are out on disability or otherwise.

Customer: replied 1 year ago.
Phillips, Esq-Thank you very much, as your feedback is greatly appreciateed. My employer is exactly treating it as "sales incentive compensation" with this phrase on leave of absence for sickness, pregnancy, or caring for a family member, as a catch all in the plan as a way to avoid paying employees. There is also a passage in there regarding termination or being no longer with the company for the same purpose. For example, if I was a high risk pregnancy and I was ordered on bedrest and had already sold the service in advance, the customer was paying for the product or service, the representative should be compensated accordingly for the services sold; as that would be a similar situation.
In working with the labor comissioner, and taking your feedback as well; the best way for me to construct and prepare for the hearing is what I am thinking.1. Getting copies of my "quarterly commission detail" files over the last 12 months and sales reports called "Sales Stack Rankings", my 2014 Performance Appraisal, and the 2014 and 2015 Sales Incentive Compensation Plans. Because of my specific scenario, there were additional changes to the compensation plan, that I will be able to demonstrate, where the passage about "Leave of Absence" is added to other Corporate Awards & Sales Recognition; where it didn't used to be there before. My organization forced me to return my computer as soon as I went on Total Temporary Disability. I will use this as an example to show how the policy has changed, due to my situation and how it impacted me.
2. Historic report of the customer (when they were sold, using our services, and being billed for our services) of their spending with our company and using our services.
3. Timeline of customer being closed and on-boarded, workplace injury happened first day at this customer with a witness when incident was reported, three previous quarterly bonus payouts from my employer at the maximum compensation, and sales results including Q-4 2014 (the 3rd of the 3 consecutive quarters) when paid in full while working under modified work duty (was working 4 hours per day with no travel), then went out on total temp disability February 2, 2015, date and findings of AME Exam attributing 100% of injuries to workplace injury on June 8, 2015, and documentation and multiple requests asking for assistance.
4. Highlight the use of the phrase "sales commissions" and "commissions" in sales vernacular, company correspondence, and internal company correspondence. The official electronic file name every quarter is named "Bacchus Commission Detail"
5. Demonstrate that my employer did not following their own policy, by making a partial payment to me of "$18k due to "financial hardship though they were not supposed to pay me at all, until I return to work." They knew that if they didn't pay me anything; that I would be upset. They wanted to make a partial payment to pacify me.The attorney that came to the hearing that represented my company told me, that I wouldn't get the balance of my payment that is owed to me. This also goes directly against what is said in our Sales Incentive Policy
6. I will breakdown that for these reasons - sales people are paid for customers using company services that the original sales representative sold for the company, the customer paid for the services, the sales person earned the credit for the sale, and they should be paid as commissions, which are wages in the state of California. The sales commission of $36k should be paid immediately; because I do not have a return to work date at this time. The primary reason that I am not able to return to work is that my employer's workmen's compensation insurance carrier will not approve the medically requested surgery that has been requested and rejected three times.
7. Demonstrate that I was the sales person who closed this account, the actual customer was and is actively using the services the entire time, and continued to service and sell the account while working.
8. Demonstrate my desire to return to work to get paid and provide multiple correspondences to the president of our company, asking for employer support (which went unheeded) in working with the workmen's compensation insurance carrier.Please provide me with your feedback and any other recommendations? I also have the option of getting declarations or subpoenas from former employees familiar with the process on how commissions are calculated and paid. Do you feel that I need these? If you have any other recommendations or feedback, please advise. I don't know if I am required to cite the appropriate California Labor CodeI sincerely ***** ***** feedback.Sincerely,Brighton Bacchus
Expert:  Phillips Esq. replied 1 year ago.

You can cite appropriate California Labor Code. However, that would not be necessary here because DLSE supposed to know the code. Your strategy is on target. Getting Affidavits/Declarations/Subpoenas from former employees is prudent. The keyword here is commission, not incentive plan. Incentive plan is a bonus. However, what you described is a commission and must be paid to the employee whether the employee is absent or terminated because the commission has already been earned.

Customer: replied 1 year ago.
Are there any recommendations on templates you can recommend for declarations on something like this? I know the DLSE can help me prepare affidavits and subpoenas. If there are any other recommendations that you have; it would be appreciated. That's all the questions I can think of at this time. I look forward to your feedback and will also rate you 5 stars
Customer: replied 1 year ago.
I wanted to get your thoughts on these statements for the declaration, stating that the word "commissions" was used interchangably by my organization's leadership in multiple arenas, giving the indication that the sales incentive is actually commissions.........Your name, your positions and location with PI, and time frames you worked for them.that1. PI "Incentive pay" was referred to as "commissions"2. that PI would use the word "commissions" in company e-mails, company correspondence, and updates" and, "internal communications and electronic files" including, but not limited to, "SALES REP NAME - Commission Statements Detail" and also in the PI Sales Incentive Plan3. Referred to our sales incentive payouts as "commission checks"(Number 4 is for DSM's and not you)4. As a district sales manager, when communicating with sales representatives that reported to you, would refer to the sales incentive payouts, as commission payouts.5. Referred and understood the "sales incentive checks" as "commission checks"6. That the terms "commissions" and "commission rates" was used in the "PI Sales Incentive Plan."Please let me know if you would be willing to help me. I just need you to review it and sign it and return it to me. Me and my family could really use your help right now against Purolator.If you would help me; that would be great. If not;'I totally respect that. If so; can you think of anyone else who may help me?Your friend,BBIf you agree to it; please send me your e mail address and I will send it to you.
Expert:  Phillips Esq. replied 1 year ago.

I am sorry, but I cannot review the draft for you and sign off on it. If I did, I would be acting as your Attorney, which I am not. I only answer general questions on this site.

The contents of the Declarations that you posted are appropriate and on target.