Getting Paid: Bonuses, Wages and Commissions

Under California statutory law, “wages” enjoy a very broad definition. Case law has included “bonuses” in the definition. Why does that matter to California employees?

If you are discharged, any wages you have earned up to and including the date of termination are due and payable – immediately on the date of termination. Employees who find themselves in the regrettable situation of being let go or fired (or even in need of quitting) should expect payment in full of all wages earned prior to signing any release, etc. California employers who fail to pay wages in a timely manner (that is, on the date of termination) can find themselves subject to waiting time penalties, interest and/or attorney’s fees.

Waiting Time Penalties: California employers who fail to pay wages due an employee on the date of their termination “willfully,” the wages of said employee will continue as a penalty from date of termination (at the same rate) until paid or other appropriate action is taken.

Interest: The court awards interest on all due and unpaid wages at an annual rate of 10% accruing from the date wages were due/payable.

Attorney’s Fees: When action is brought for nonpayment of wages, benefits, etc. reasonable attorney’s fees can be awarded to the prevailing party by the court.

California law has employees leaving a job covered. There should be no reason to lose wages already earned. There should not even be a reason to wait for wages already earned.

To resolve non-payment issues with previous employers quickly and professionally, contact Blumenthal, Nordrehaug & Bhowmik. 

Unpaid Commission: Can it Be Recovered?

Most feel they have a solid understanding of overtime pay and whether or not they are receiving what they deserve, but when it comes to commissions, there seems to be additional confusion. What is unpaid commission and when is an employee able to recover unpaid commission?

What is Unpaid Commission?

Before we can define unpaid commission, it’s important to define commission wages in general. Commission wages are common in many industries, but prevalent in the computer and technology industries particularly. According to California wage law, commission wages refers to compensation that is paid as a percentage of the price of the product or service that is being sold. Commissions can also be based on the number of items sold. Disputes regarding commission wages and unpaid commissions are often resolved under the same legal principles as bonuses.

When are commissions “unpaid?” The easy answer is that commissions are classified as unpaid when they have been earned and never received. Technically the commission is earned by the employee who “procures cause” for the sale or other event resulting in commission pay. Disputes often arise when management intervenes during the sales process. When management is involved at some point during a sale, it is important to note the point at which someone procures cause for the sale and who was handling the customer at that point in time. This is the individual who has technically earned the agreed upon commission.

Obtaining Unpaid Commission:

If you feel you are entitled to commission that you never received, seek legal counsel. Employers frequently change compensation plans, utilize unfair provisions and/or adopt a very narrow interpretation of a commission agreement or plan. In some cases, employers are forced to seek unpaid commission post-employment. It’s important to note that employees who no longer work for a company can still be due commission on sales procured during their employment. Employers can’t reap the benefit of your efforts while simultaneously ignoring the agreement to provide you with a commission for those same efforts.

Employers will often work their compensation plans in various ways in order to justify commission forfeiture with little to no cause. Examples include employers who add verbiage making commission payment “exclusive” to current employees or allowing the employer to alter the commission agreement in certain situations, etc. California wage laws can help former and current employees recover commissions. The courts may see the commission agreement differently than your employer.

Call Blumenthal, Nordrehaug & Bhowmik today and find out how your unique circumstances can be taken into consideration when attempting to obtain unpaid commissions. 

When Should Employees Get Overtime Pay?

Federal law regulates overtime pay requirements. According to federal law, employees who work more than 40 hours in one week should receive one and a half times their normal pay rate for the “overtime” hours. As is often the case, there are exceptions to this law, but it’s important for employees to question their situation due to the fact that employers often misunderstand the rules or misapply them in specific circumstances – most often at the employee’s expense.

If you are an employee that works more than 40 hours and week without overtime pay, your employer could be in violation of the Fair Labor Standard Act. If an employer is in violation of this law, you could be entitled to the amount owed to you as well as additional funds to cover liquidated damages and attorney’s fees.

Define Your Employee Classification and Job Duties:

There are two categories of employees: exempt and nonexempt. The Fair Labor Standard Act (FLSA) doesn’t cover exempt employees. Federal law does not require employers to provide exempt employees with overtime pay. Exempt employees are often in managerial positions. They can receive pay on a salary basis or as an hourly wage. They have independence in their job duties and authority over their own work. Exempt employees are involved with creating/applying workplace policies and have some responsibility for making decisions within the company framework.

It’s important to consider exempt status because employers will often categorize employees as exempt inaccurately. For example, an employer could provide an employee with the title of Assistant Manager, but fail to provide the employee with any authority or responsibility for other employees. Another example is when employers categorize an employee as an independent contractor, but their day-to-day job duties more closely resemble those of a normal employee.

If you are an employee who does not receive overtime pay it’s important to define your status: exempt or non-exempt. This will determine whether or not your situation is governed by the FLSA. If you are misclassified as exempt, you can fight to get the compensation to which you are entitled by federal law.

Employers subject to the Fair Labor Standard Act aren’t permitted to exchange personal days or other extra benefits for overtime pay. Employers are also not allowed to have mandatory meetings that occur when employees are officially “off.” As an employee, you are entitled to the pay you have earned. When you put in extra hours, you are entitled to extra pay. If your employer doesn’t pay you overtime (to which you are legally entitled through the Fair Labor Standard Act), contacting an expert in unpaid overtime is the most appropriate step towards resolution.

Blumenthal, Nordrehaug & Bhowmik helps you enforce your overtime rights. If your employer is knowingly and willingly refusing to pay you earned overtime pay, you are entitled to the amount owed. Call today to discuss your employment situation and see how you can get paid past due overtime wages. 

PetSmart Pays $10 Million as Wage Class Action Settlement

According to documents filed in California federal court on January 31, 2014, PetSmart agreed to pay $10 million to settle claims that 16,000 animal groomers/workers (current and former) in more than 130 stores were underpaid.

The suit was originally filed in 2012 with allegations that PetSmart violated labor law. Plaintiffs claimed:

• PetSmart failed to compensate groomers for time spent doing non-grooming duties (i.e. stocking/cleaning).
• PetSmart stylists were paid 50% of the grooming fee. This failed to cover minimum wage requirements for time spent performing non-grooming duties.
• PetSmart failed to compensate hourly employees for helping customers during meal breaks (employees were required to punch out of time clocks at the front of the store while the break rooms were located at the back of the store).
• PetSmart broke California labor law mandating a meal period after 5 hours of work. Hourly employees were allowed 30-minute meal breaks if they worked 6-8 hours. 

The approval hearing for the PetSmart settlement has been set for March 7^th. Successful settlement would resolve all allegations made against PetSmart by all plaintiffs included in the suit: hourly employees and stylists, grooming trainees as well as grooming salon managers who were employed in a California PetSmart store between May 23, 2008 and the present. The class for terminated PetSmart employees ranges from May 23, 2009 to the present.

For more news on recent employment law cases, check back often for updates from Blumenthal, Nordrehaug & Bhowmik. 

Employer Response to the Recession Not in the Employee’s Favor

During the recent recession, employees and employers alike were pushed right to the edge. In the aftermath, new trends emerged. Americans found themselves working longer hours – usually for the same or less pay than before the recession hit. This could be seen as logical due to the fact that employers laid off close to 9 million American employees during the recession.

The problem is that all the logic of this solution lies on the side of the employer. Many employees are now starting to strike back through their legal system. Since the recession’s peak in 2008, more employees are filing suit against their employers citing federal and state wage and hour laws. In 2012, the number of lawsuits filed was up 32% in comparison to 2008. Experts indicate that the massive rise in lawsuits filed is due in part to the post-downturn severity that permeated the workplace and created an artificial increase in productivity.

Some of the main grievances cited by workers’ filing suit included:

·      Being forced to work off the clock
·      Misclassification as exempt from overtime pay requirements
·      Misuse of smartphones/technology resulting in constant disruption of personal time by “work” issues

If any of this sounds familiar. You may need to look a little bit closer into your work situation. You could be one of the many Americans struggling for success in a work environment that makes success nearly impossible.

If you find yourself working longer hours with less pay get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. You may need some expert advice to get your career back on a healthy track.   

Defining the Written Employee Contract

There are times when an employee is asked to sign a written employee contract. Before we can discuss when you should and should not consider agreeing to sign such a document, it’s important that we clearly agree on an exact definition.

What is a Written Employee Contract?

A written employee contract is a document provided (typically during the hiring process) to set forth terms of the relationship between the employer the employee. Both you and the employer sign the document. Entering into a written contract is not necessary with every position. Actually, use of the written employee contract is an exception to the normal practice during the hiring process – not the rule. But it is important to know what this particular type of document entails so that you can better understand when it might be appropriate or even possibly advantageous to agree to sign on the dotted line.

What is Included in a Written Employee Contract?

The written employee contract will clearly state the employee’s job description. It will also clearly state the agreed upon salary. In addition to this other items related to the employment relationship can be specified including: the length of the job (1 month, 2 years, indefinite, etc.), additional information regarding the employee’s responsibilities on the job, limitations on employee activity once the job is complete in order to avoid competition, protection of the company’s trade secrets/client lists, specified grounds for termination, additional benefits (vacation, disability leave, health benefits, etc.), ownership rights of employee’s work during the duration of the contract, methods agreed upon for resolution of any disputes arising as a result of the employment relationship, etc.

The written employee contract isn’t just one more piece of paperwork dragging the hiring process out. In some instances, it can be a vital element that protects both the employer and the employee from negative situations that could damage team morale, employer/employee relations, your ability to successfully complete the job at hand or your opportunity to fully enjoy the full extent of benefits that were promised during the hiring process.

Find out more about the advantages and disadvantages of signing a written employee contract in upcoming articles here on the Blumenthal, Nordrehaug & Bhowmik blog or get in touch today to talk to a legal expert on employment law. 

The Advantages of the Written Employee Contract

Many employees have never heard of the written employee contract. You might see it as an unnecessary annoyance mucking up the hiring process. Others have worked in fields or amongst employers who have utilized the written employee contract for all new employees.  They may see it merely as a formality observed almost ritualistically or there may be clear and obvious reasons that make it necessary. Today we’ll look at the actual advantages of signing a written employee contract.

What are the Benefits of a Written Employee Contract?

Entering into an employment contract during the hiring process is not always necessary. As mentioned in the previous article defining the written employee contract, it is actually an exception to the rule rather than a basic procedure required for every employee. But there are certain advantages that should be considered.

Employment Contracts are Useful if:          

1. You are a contractor or temporary hire handing a special project. The written employee contract can clearly specify terms of employment that can provide you with a written guarantee that you will have the opportunity to continue your work through project completion without fear of dedicating time, energy & expertise to an endeavor that will be handed off to someone else when the end is in sight.

2. You want to protect confidential and/or sensitive information regarding your business or business practices. Confidentiality clauses can be inserted into written employment contracts to protect trade secrets that the employee brings to the table. This can be important for employees who want to protect their life’s work while also joining in on group projects in their field.

3. You want job security. The written employment contract can offer job security and clearly agreed upon beneficial terms of employment.

4. You desire greater control over your employment status. Standards for performance can be clearly determined and agreed upon in writing – making it clear what is expected and what consequences/rewards will occur in response to given circumstances. The written employee contract removes the need to depend on promises from new employers. It is a written documentation of exactly why you agreed to take the job. 

Watch for the next article in the series outlining the disadvantages of signing a written employee agreement during your hiring process here on the Blumenthal, Nordrehaug & Bhowmik blog or call today to talk to an expert on the legalities of hiring and how to protect your company during the process.