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Texas - Contract Employee on Commission

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  • Texas - Contract Employee on Commission

    my fiancee has been working for a courier company here in Texas for a few months now and because we're fairly broke, he's been tolerating the crap until he finds something else. he gets paid commission only and isn't reimbursed for gas, maintenance, etc. a month ago, we get his paycheck, deposit it, it clears completely the next day so we pay some bills and then the next day, the check bounces and we're out that money as well as a few overdraft fees due to the account going negative. so they give him another check to cover it a few days later and when he goes to the company's bank, they tell him there are not enough funds. so he calls the boss, who says "that's why i told you to deposit it at your bank. the funds will be available when the check clears" which set off a HUGE red flag in my book. we end up taking the risk and depositing it in our bank and luckily, it all went through, but it took 3 days to clear because it was over a weekend, so that means it took a whole week to finally get our paycheck money AGAIN.

    anyway, next paycheck comes and yet again, the company's bank says there aren't enough funds so we have to take it to our bank to cash/deposit it. our opinion of this company is dropping fast.

    when we ask for paperwork explaining each day's work and the pay involved, they mentioned that it's extra work for them and they are going to charge $8/month to print out that information. that's the most ridiculous thing i've ever heard!

    a few days ago, one of the drivers gets in an accident and the boss tries to get him to leave the scene of the accident so he can finish delivering the stuff! now that's just not right.

    so now we're to today. we found a much better company to work for and they're ready to hire him, but there's a slight problem. the current company has a clause in the contract stating that a written notice has to be given 14 days in advance or else they keep any unpaid wages as 'liquidated damages.' because today's a holiday, we can't find out much by calling around, but the longer we wait, the longer he may have to work for this shady company.

    anyway, i was curious if anyone had any insight and/or know if it's even legal to withhold a paycheck and claim it as damages. he *really* wants to quit and start at this company ASAP. oh, and they still haven't reimbursed us on the overdraft fees we incurred as a result of their bounced paycheck. ugh.
    Last edited by strawbry; 10-10-2005, 09:52 AM.

  • #2
    I can't tell from your post whether he is an employee or and independent contractor. If an IC, the only thing he can do is file a civil suit; in small claims court if the amount is under the state maximum.

    If he is, in fact, an employee, Texas law requires that he receive his final paycheck by the next regularly scheduled payday or within 6 days on demand, whichever is earlier. In addition, the employer cannot put any restrictions upon the receipt of pay. And charging to see paperwork which verifies that the employee has been paid correctly? Don't know if that is a violation of Texas labor law, but you can inquire; in any case, it stinks. He should be contacting the Texas Workforce Commission regarding these issues.

    However, you do mention "contract", which makes me wonder if he really is an independent contractor or, if he is, should he be. An employment contract is very rare for someone who does manual labor.

    To determine whether he is an employee or IC, see here:

    I'll check back later.
    Last edited by Pattymd; 10-11-2005, 06:02 AM.
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    • #3
      thanks for the reply!

      oops, sorry... he's an independent contractor - 1099 'employee.' his pay is commission based. i'm beginning to think this might not be worth it to fight it, but surprisingly, this other courier company that wants to hire him is making some calls to find out if there is anything he can do to get out early.

      we're now wondering if we should go ahead and submit the 2-weeks resignation letter and go from there. so at least closure is there and the current company is aware that he wants to leave. but if we do that and then find out that they're not supposed to keep wages regardless of when he quits, is he still legally required to continue working for them until formal resignation or can he quit on the spot?


      • #4
        See, now therein lies the problem. I doubt very seriously that your fiancee would qualify as an independent contractor. FWIW, there are "employees" and "independent contractors"; they are mutually exclusive. Did he read the link I provided? The fact that his pay may be totally based on commissions does not automatically make him an IC.

        In any case, if he should have been an employee, then if he does not receive his full pay following termination, he can file a claim with the Texas Workfoce Commission.

        If he was correctly classified as an IC, he will have to abide by the terms of the contract he signed relative to pay for hours worked/commissions and notice.

        In any case, however, it might be worth it to have the agreement reviewed by a local attorney versed in contract law.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


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