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Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 102379
Experience:  Years of experience in running a medium sized law firm.
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Can an employer take money from Commisions owed an employee

Customer Question

Can an employer take money from Commisions owed an employee and deposit into said employees 401k account and say it is employer money ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

That depends on several factors. Please tell me:

1) What state is this in?

2) What is your position?

3) Please explain the commission agreement.

4) Do you have a 401k set up through your employer?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
California , I am a 100 % Commisioned salesman . My employer tells that I am not enrolled , but he still takes monies from my Commision and deposits it into my 401k account and on the Statement it says it is employer money under profit sharing and safe harbor
Expert:  Ely replied 1 year ago.

Thank you.

Unless you have an agreement in place THAT YOU SIGNED that allows such withholding, then no such withholding should take place. Ergo, what they are doing is arguably unlawful. If you are a 1099 contractor (and I am assuming you are, if not, reply and let me know), you can file in court for breach of contract, and, unjust enrichment. Of course this is the last case resort, as doing so will likely hurt any further work between the parties.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.
I am going offline for the evening. Please let me know if you need anything else answered and if not, please don't forget to RATE my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please use the REPLY or SEND button to keep on chatting – I want you to be satisfied.