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Draw vs Commission Recoverable?

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  • Draw vs Commission Recoverable?

    I worked for a company as a designer. I signed on as draw vs. commission schedule. I left after three months, not being satisfied with the company ethics. I was involved in a few projects, including helped on an older project that was not my own. My employer wants me to pay back the entire amount of draws that were paid to me over 3 months equaling $4,800. I did everything there that I could. I did drawings and designs for future projects as well that they do not want to compensate me for. According to GA law do I have to pay this sum of money back? I thought there was a stipulation that they have to at least pay me minimum wage. I also gave them the future leads that I had. They don't want to pay me for any work I did there at all. In my agreement with the company there is nothing in it that says that I will have to pay the draws back, or addresses anything if I were to leave. It only said how I would be paid. My ex-boss is now saying that I must agree to pay the money back by the end of the week or they will have their lawyer contact me. If anyone has information that would be helpful that would be great.
    Last edited by zepher28; 05-05-2008, 02:37 PM. Reason: Needed to add info

  • #2
    Based on what you have said, you had to be paid at least minimum wage. There are a very few worker classifications that can be paid on 100% commission but working in an office as a designer would not be one of them.

    I would like to ask a few question to make sure however.
    - Where did you actually work (employer's office v. your home for example)?
    - Were taxes taken out of your checks? Did you complete a W-4 form? Do you have any reason to believe that you are not considered to be an employee?

    Also, you said you signed a schedule. Did you sign anything else, like a contract? If so, you really need to have a local attorney read the contract.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      I worked in the office from a required 10-6 and was also required to go to certain events beyond the normal work week such as weekend trade shows, etc.

      They never had me sign a W-4, they only asked me what I claimed over email. But to answer your question, yes they did take taxes out of the draws.

      They also paid for my cell phone bill and I was promised eventually to have health insurance after 90 days but I had not stayed there long enough. There was suppose to be holidays off with pay as well as two week paid vacation at some point and the whole nine yards.

      I did not sign a schedule. My ex-employer sent me an email with the terms of hiring and the draw schedule, (ex. $1,200 bi-weekly). And in her letter of hiring they refered to my duties as employee requirements, (ex. all employees are required to attend special events, at least once a month). But they said that because I decided to work there that I agree to those terms in the email, although there was never anything in writing from me saying that I accepted it. I never signed my name to anything, nor is there any kind of formal contract.


      • #4
        Well, never say never, but I do not see an obvious argument that the employer can make, at least not based on what was said. If you were not legally an employee then some type of contract law argument is at least possible, but based on what you have said, you not only legally sound like an employee, but there is nothing that indicates that the "employer" was trying to treat you as a so-called independant contractor.

        Everything you stated sounds like a Non-Exempt employee who is subject to MW and OT requirements. There is a small possible that they could claim that FLSA is not applicable. That is not impossible, just very, very unlikely. They basically have to claim that your work had nothing what-so-ever to do with interstate commerce and there have been a bunch of court decisions that cast a very wide net over what is interestate commerce. But even if they make the argument, I do not see how that gets them any closer to talking a judge into making you give the money back. IMO, wait for "the lawyer" to contact you and see if they are using a real argument, or just a "we will call you names and make ugly faces until you give us the money" type of letter.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


        • #5
          The company was a cabinet dealership in GA that sold cabinets that came from PA. I assume that is interstate commerce, in which case, what does that change?


          • #6
            I am going to give you two different answers, both of which are legally correct.
            - The interstate commerce rule is specific to the employee, not the company. Unless you personally were involved with those sales, you personally are not effected. You said that you were a designer, not a sales person.
            - However like I said earlier, there have been a bunch of court decision that make it very, very unlikely for almost anyone to not fall under the FLSA. There was a apartment building manager who did touch up painting of the building using paint manufactured out of state. Per the court, that employee (not the employer, the employee ) was engaged in interstate commerce. Employees who made out of state phone calls have been deemed by the court to be engaged in interstate commerce.


            If you are looking for guarantee that you are subject to FLSA, guarantees only occur if your employer makes more then $500K in annual sales. Past that a judge or ALJ gets to hear all arguments and they get to make a decision. I will repeat that it is very, very likely that you are subject to FLSA, and that is as good as it gets.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)


            • #7
              I do design, but I did actually sell a job while I was there. and was part of other jobs sales too. You answered my question though. I appreciate it, I am going to just wait and see. I figure that it would not be worth their time or money in the end to try and collect anyway. They are not trying to be fair either way. This seems to be more of a personal vindication for my ex-employer. They aren't going to pay me for commissions on jobs that I did work for, and I am not trying to go after them for that. Thank you again.


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