California Employment Law

Have California employment law questions? Ask a lawyer.

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

Thank you for your recent advise on how best to handle our…

Thank you for your recent...
Thank you for your recent advise on how best to handle our disgruntled ex-employee. There are a few points that I would like clarified:
To recap the basis of our original question: Our employee was the manager of our shop workers. He was being paid generously for his services and in 2013 my dad had verbally told him that our company would pay him a bonus of 10% of the profit of the company (after expenses, salaries and owner’s equity were taken out) for the year. Since my dad is not an accountant, the 10% was not an easily definable amount. Consequently, in 2014 he wrote out a formula that was based on the gross sales of the company. This was the amount that was paid as a bonus to this particular employee over the past three years.
You mentioned in your previous answer that oral contracts were both hard to prove and have a statute of limitation of two years. However, a week ago, I had sent the disgruntled employee a few text messages that might be damaging. So my first question is, are text messages on smart phones recognized by a court of law? If they are not, that is the only question we have. If they are, please respond to the possible implications of the following text message that I sent to this employee. Bare in mind that I was not present when my dad had mentioned the 10% bonus and my dad was at the time the sole owner of the company. Now I am an officer of the company (president) although the company is still 100% owned by my dad. Here’s the text that I sent:“I think the problem is the way you were interpreting ownership and equity. I believe you are thinking that my dad had given you a 10% ownership in the company, and you’re thinking that you are getting screwed because that 10% ownership was never in writing and that all along you have owned 10% of the company. That is not the case, nor was it ever the intention. My dad was offering you 10% of the profit the company made at the end of the year. If we were to have drafted a contract, it would have explicitly stated that, and explicitly said that if you were to ever leave or be fired from the company, you would obviously no longer get the 10% of the profit. Likewise with me, I get 20% of the profit, but if I leave I don’t just continue to draw a paycheck. The profit sharing was intended to make us work harder and to be watchful of saving costs and not spending too much. Never was it ever a thing where for free we were just given equity in the company - that makes no sense.”
When my dad read this text he became concerned that, as an officer of the company (now), that my interpretation of the oral contract (I was not present when the oral contract was made), may have inadvertently committed our company to paying our ex-employee 10% of the profits of the company for the years after 2013. Do you see it that way? Would a judge interpret it that way and is a text message legally binding?
Show More
Show Less
Ask Your Own California Employment Law Question
Answered in 30 minutes by:
11/7/2017
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,887
Experience: Retired
Verified

Hello again...you asked:

So my first question is, are text messages on smart phones recognized by a court of law?

A: Yes, a text message is admissible evidence, provided it can be proved to have been sent by the opposing party (you).

If they are not, that is the only question we have. If they are, please respond to the possible implications of the following text message that I sent to this employee. Bare in mind that I was not present when my dad had mentioned the 10% bonus and my dad was at the time the sole owner of the company. Now I am an officer of the company (president) although the company is still 100% owned by my dad. Here’s the text that I sent:

“I think the problem is the way you were interpreting ownership and equity. I believe you are thinking that my dad had given you a 10% ownership in the company, and you’re thinking that you are getting screwed because that 10% ownership was never in writing and that all along you have owned 10% of the company. That is not the case, nor was it ever the intention. My dad was offering you 10% of the profit the company made at the end of the year. If we were to have drafted a contract, it would have explicitly stated that, and explicitly said that if you were to ever leave or be fired from the company, you would obviously no longer get the 10% of the profit. Likewise with me, I get 20% of the profit, but if I leave I don’t just continue to draw a paycheck. The profit sharing was intended to make us work harder and to be watchful of saving costs and not spending too much. Never was it ever a thing where for free we were just given equity in the company - that makes no sense.”

When my dad read this text he became concerned that, as an officer of the company (now), that my interpretation of the oral contract (I was not present when the oral contract was made), may have inadvertently committed our company to paying our ex-employee 10% of the profits of the company for the years after 2013. Do you see it that way? Would a judge interpret it that way and is a text message legally binding?

A: The text appears to be an admission that the company would pay the employee 10% of the profits. It doesn't say for how many years, so it's quite possible that it could be interpreted to mean for as long as the employee continues to work for the company.

In the real world, there would likely be a jury, and your lawyer would call your father as a witness to explain his version of the original deal; your employee's lawyer would ask the employee to explain his version, and the jury would decide who's telling the truth. This assumes that there would be no settlement beforehand.

The (rhetorical) question that I have is when did you stop paying the 10%? If it was more than 2 years ago, then the statute of limitations has probably expired. Though, it could also be argued that the 10% was to be paid as wages, and if so, then the statute of limitations would be three years.

The difference could be very meaningful, because if the claim is made for unpaid wages, then the employee is entitled to attorney's fees and costs of suit -- and that could be a lot of money in addition to the unpaid profits.

On the other hand, there's nothing in your note that suggests any ownership interest in the business -- so, if you terminate the employee, then the "profit-sharing" terminates along with the employment.

In my opinion, your best recourse is to try to get a settlement and release, in exchange for money (which could be made in payments, such as a note payable by the company over time to limit the financial pain), before the employee finds a lawyer and sues or files a wage claim with the labor commissioner (assuming this hasn't already happened).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,887
Experience: Retired
Verified
socrateaser and 87 other California Employment Law Specialists are ready to help you
Ask your own question now
Was this answer helpful?
Ask socrateaser Your Own Question
socrateaser
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,887
39,887 Satisfied Customers
Experience: Retired

socrateaser is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

LawTalk

LawTalk

Attorney

1,285 satisfied customers

I have 30 years of experience in the practice of law, including employment law and discrimination law.

Tina

Tina

Attorney

923 satisfied customers

JD, 17 years experience & recognized by ABA for excellence in employment law.

Brandon, Esq.

Brandon, Esq.

Lawyer

348 satisfied customers

Has received a certificate of recognition from the California State Senate for his outstanding legal service.

melissamesq

melissamesq

Attorney

47 satisfied customers

Represent clients to maximum recovery in employment cases.

legalg

legalg

Other

53 satisfied customers

General Practitioner. Research Attorney

Roy Hadavi

Roy Hadavi

14 satisfied customers

Attorney at Law Offices of Rosenstein & Associates

Attorney2020

Attorney2020

Lawyer.

69 satisfied customers

I have significant experience in employment law.

< Previous | Next >

Related California Employment Law Questions
I'm a restaurant manager. Can my boss force me to repay a
I'm a restaurant manager. Can my boss force me to repay a $200 cash shortage from me giving the bar too much change? If so, shouldn't the bartender be required to repay a portion as well?… read more
legalg
legalg
Other
Juris Doctorate
53 satisfied customers
I left the company I worked for and received two additional
Hello. I left the company I worked for and received two additional payroll checks before I was contacted to pay the money back. Am I on a time frame to pay this back? … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
My partner was hired in August 2017 as senior marketing
My partner was hired in August 2017 as senior marketing manager for a small downtown San Francisco tech startup (around 24 employees). Her VP of marketing and some others left the ship over the last f… read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
My son's employer put together a list of approved drivers
My son's employer put together a list of approved drivers for taking patients out of their facility. They posted the list with names and driver's license numbers in a common area, and provided that li… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
11,224 satisfied customers
Following the Dynamex decision I think I may be a
Hello, following the Dynamex decision I think I may be a misclassified W2 and I am interested in finding out whether I can benefit myself by pursuing it. … read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
My wife works in a Veterinary Medical field and had a
Hello, My wife works in a Veterinary Medical field and had a complaint filed against her by an angry co-worker saying my wife was bullying/harassing after my wife asked her to please stop doing someth… read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
I am a registered nurse working in assisted living in
I am a registered nurse working in assisted living in California. Last week a nurse from the hospital informed me that an unresponsive resident would be returning at 5 pm and a hospice nurse would be … read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
I am a medical marijuana patient living in California who is
I am a medical marijuana patient living in California who is planning to move to Wisconsin to be a student full time. I will also be needed a part time job to help pay for living expenses. Most jobs i… read more
David C. Garner
David C. Garner
Attorney
Post-Doctoral Degree
896 satisfied customers
A probono attorney filed a harassment lawsuit against my
A probono attorney filed a sexual harassment lawsuit against my prior employer over a year ago, within the statute of limitations. I haven't heard anything much since. Is the employer obligated to res… read more
Eric Y., Esq.
Eric Y., Esq.
Law/J.D.
169 satisfied customers
How much does your service cost? HR and lawyer. At will and
It's a conditional offer being rescinded because of a pending background check… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I have been on salary for several years and have never
I have been on salary for several years and have never received any overtime pay do i get overtime pay … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I am interested in speaking with a CA unemployment law
Hi, I am interested in speaking with a CA unemployment law attorney. Thank you. … read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
Mr/Ms. Ca, no start yet, I am employer I hire contractor for
I am employer I hire contractor for for contraction work by W-9… read more
socrateaser
socrateaser
Lawyer
39,887 satisfied customers
Does a wife have to take the survival benefits of a husbands
Does a wife have to take the survival benefits of a husbands plan? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
11,224 satisfied customers
I am employed by a California company on their payroll in
I am employed by a California company on their payroll in California. I have lived and worked only in California for the last 12 years and for this employer for 3 years. My employer is a subsidiary of… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I am a contract employee of a contract company with a
I am a contract employee of a contract company with a government contract. I have concerns about how several positions on this contract have been "appointed" and not posted for all of us to apply for.… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
11,224 satisfied customers
Are “independent” tattoo artists that work for one studio,
Are “independent” tattoo artists that work for one studio, for commission (only job), now considered employees due to the new ABC test California has implemented?… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
11,224 satisfied customers
I was let go from my work last wednesday following an
I was let go from my work last wednesday following an investigation regarding forging of signatures at my location. When I was let go I was brought into a room and given a 3 minute conversation statin… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x