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Recourse please! Texas

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  • Recourse please! Texas

    Thanks in advance for your help. Here is my situation. I left my company in September to join a company (it’s an LLC) in an outside sales position. I was supposed to start on September 15th. Unfortunately I was told not to come to work until September 19th as the company could not operate due to Ike damage. I was told that the owner was filing a claim on their business insurance for lost salaries and that I would be reimbursed. I never heard about it again. My signed agreement (signed by the owner)for this job states that I was to make a fixed salary that would have allowances for car, gas, and cellular, please see below:


    Start DateSeptember 29 2008
    Base - $78,000.00 per year. (Sales), Pay Day is the 1st through^the 5th of each month
    Sales Quota Commission plus Bonus- to be determined onJ39^Joj/ember 2008
    Limited and approved expenses based on each activity, 24 hour notice required
    First 60 days is salary only.
    The first 60 days of work with XXXXXXXXXX is considered contract work. I will receive a 1099 for
    services rendered and be responsible for all taxes incurred for this contract work.
    After the first 60 days, here are the benefits beginning after:
    3 weeks paid vacation time to be accrued throughout tne first year, 4 weeks' notice required to take vacation
    7 days paid sick/personal time, 24 hour notice required
    $100 cell phone allowance
    $600 car allowance/auto insurance
    Use of company vacation properties when available
    $400 per month gas allowance
    401K/profit sharing (available 01 February 2009)
    Health Insurance (available 01 January 2009)

    This company pays payroll once a month, on the first through the fifth- which I found kind of odd but whatever. The first month was on the fifth, the second month was on the 11th- due to “banking errors” This month- on New Year’s Eve I asked about my “allowances” and the owner became confrontational and told me they were performance based…. I asked for clarification and the owner became even more confrontational, stating that the board would probably require me to produce 3x my salary per month in revenue to “earn” my allowances. Some background on my 3 months there. I was hired to sell the companies products to retail chains to be sold and to non profits as fundraising items. Early on, I was told to slow down, take it easy, enjoy yourself, etc. I happened to have some serious interest from two national chains, the owner supposedly sent them samples but they never received it and the owner never would provide me with any tracking numbers. Those were potentially huge accounts that were lost. I got the message, and the message was, stop doing any selling. Month 2 and 3 over the holiday season, I was asked to help out a salesman with his massive territory, which encompassed all of Houston. I drove around for these two months, showing product all over town. Now fast forward to me asking for my allowances- and after the owner’s response, I got silence until Today where I was told the following:

    1. Your paycheck will be in the amount of $2,362.50 minus your half of the insurance premium. The board reviewed google docs and found you only worked from December 1-15 and paid you according to time worked. You will not be compensated for any time after that. The board is also reviewing and checking to see if the time you did work, constitutes a full work day. I told you before hiring that google docs must be updated completely and accurately for the board to know when you worked so that you made be compensated. You also should be working a full eight hour day and nothing less. XXXX and I have reviewed google docs and have found that your activity from December 1-15 only shows you working 3-4 hours each day.
    2. No allowances will be given at that this time. As I have mentioned before, I need justification of the allowances we allotted to you.
    3. I have reviewed google docs in the last day and noticed that you did not follow through with plan that you mentioned to XXXX when yall met last week.
    4. I want to remind you that a quota of $5000 needs to be achieved by the 15th of this month. The board has also set a quota for you in the amount of two times your salary and benefits. So in going forward, you should be bringing in about $17,000 in sales each month.


    I did enter all pertinent information into the google docs that she mentions and on days that I didn’t I was always doing some sort of company related work, helping with the email service, online selling, etc. I worked in some capacity every day, save Tgiving, Xmas, and New Year's Day. I even had a work related meeting on Jan 2nd. It is my understanding that outside sales persons are exempt and therefore cannot be docked for perceived partial days. And nowhere in that signed agreement do the allowances say they are performance based. If they want to fire me, great. It seems to me they should have to pay me as well.

    What recourse, if any, do I have? Sorry for the very long post.

    Thanks!
    Last edited by jerrytex; 01-06-2009, 05:27 PM.

  • #2
    This is a matter of contract law and you would need to contact a local attorney to discuss your options.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Contract may not be needed

      There may be a way that the situation would not rise to the level of contract. The Texas Payday Law requires the payment of wages, which includes vacation time if specifically required by a written policy of the employer. That obviates contract law application, and could be dealt with by a claim for unpaid wages with Texas Workforce Commission.

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      • #4
        Originally posted by Texas709 View Post
        There may be a way that the situation would not rise to the level of contract. The Texas Payday Law requires the payment of wages, which includes vacation time if specifically required by a written policy of the employer. That obviates contract law application, and could be dealt with by a claim for unpaid wages with Texas Workforce Commission.
        Right, but this is an outside salesperson and I'm guessing the employer has taken advantage of the exempt classification, meaning NO wages for time worked are due under the law.

        Having said that, filing a claim with the TWC is free. It either works or it doesn't.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Agree

          Originally posted by Pattymd View Post
          Right, but this is an outside salesperson and I'm guessing the employer has taken advantage of the exempt classification, meaning NO wages for time worked are due under the law.

          Having said that, filing a claim with the TWC is free. It either works or it doesn't.
          I wasn't clear. I meant that the vacation only might be required under a written policy. Clearly, normal wages would be payable only in the case of an agreement (commission agreement). Sorry to hurry my response.

          Uder any circumstance, it's a real long shot.

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          • #6
            Why would no wages be due under law for an outside sales person with an exempt status?

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            • #7
              Because there is no minimum wage or salary requirements for outside salespersons under the FLSA or any state law.

              Whether or not your commissions are considered "wages" for purposes of the TWC is something only they can answer.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                Outside Sales exception.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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