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Sales rep quit while out sick - commission? California

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  • Sales rep quit while out sick - commission? California

    employee started 4/5 and e-mailed resignation today, 7/12. Is not eligible for benefits until 8/1 and was out sick yesterday and today so those days are unpaid. Are we required to pay commissions on sales that came in those 2 days? Can we tell him his resignation date will be considered the last day he worked, not the day he notified us? Reps are in teams, so he may not have had anything to do with actual sales. Thank you.

  • #2
    Yes on using the last date worked. Commissions would be due only as your contrct or policy states that they are. If the employee isn't really an employee these two days and didn't work, I'mnot sure why you would think you owe commissions.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #3
      So even though he sent an e-mail stating he resigned effective today, we can make it effective the last day worked?
      Do you have a link to the CA code for this? Thanks.

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      • #4
        I am going to include a pointer to the CA-DLSE manual. CA is very hard ball on commissions earned compared to other states. I am not saying certainly yes or certainly no, but you need to read the section on commissions and see if you can phrase your argument in such a way that CA-DLSE will agree with your position. But CA is very clear that termination has nothing to do with whether or not the commission is due.

        http://www.dir.ca.gov/dlse/Manual-Instructions.htm
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          There is no law that states you must honor the employee's prefered termination date. It isn't that there is a law that says you can make it the day after the last day worked, but rather nothing that states you can not do this.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            You want to consider the employee’s termination effective two days prior to him submitting his resignation because over those two days he accrued “team sales” commissions pursuant to the company’s commission policies? Good luck with that! Will you feel comfortable offering that explanation to a judge or arbitrator? It would seem that if he remained officially employed over those two days (following the company’s sick leave policy) you cannot finagle his termination date in an effort to withhold his commission.

            Moreover, most states examine whether the employee did all he had to do to earn the commission when assessing whether the employer has unlawfully withheld his back wages. Based on the original poster’s representations, the employee did, in fact, “earn” the commission consistent with the company’s policies by being part of the sales team during his employment. If he remained with the company, the salesman would have apparently received the commission in due course notwithstanding his two days off.

            Furthermore, what the original poster proposed could prove very expensive if she is ultimately incorrect. If the poster’s scheme does not fly and the employee wins a wage withholding lawsuit, then he could recover statutory penalties and attorney’s fees in addition to the withheld commission plus statutory interest. Is such a potential cost worth the fight?

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