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Employee laid off, asked to still selling (for commission only) no pay West Virginia

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  • Employee laid off, asked to still selling (for commission only) no pay West Virginia

    I live in WV, but have telecommuted selling software for a company that was in OH and is now in MI.

    After 5 years in Sales, they laid me off, but told me I could keep working for straight commissions (higher rate rate from my salary + commission). December 1st 2010, I was promised a contract. It finally came on Dec 9. That same day I sent a PO for $15k for which I was promised 20%.

    I have several emails from the CEO who offered me this deal, as well as Skype chats about the matter, as well as multiple phone conversations recorded where he wholeheartedly proclaims that he is in favor of this arrangement. I also have my immediate manager's conversations throughout December assuring me that the CEO promised to pay on anything attained. He has agreed to back me up. I actually even cc'd two of the board members (who are also supportive) the actual PO I sent the CEO, on the 9th.

    As I said, I did get a "contract" of sorts. I lined out two sentences that contradicted what the CEO's offer was - and sent it back signed. So I never had his signature on the contract - only his word, via email, specifically saying he approved the deal in question.

    Today I got a note from the CEO saying he has no intention to pay me.

    My questions:

    1. Is this something I should take to some Labor Board, and if so, is it here in WV where I live or in MI where the company is?
    2. Does the mountain of emails, Skype chats, and voice recorded promises help me, or is this something that this company can just duck for months until I give up?

    Thank you

  • #2
    IF this is a labor law issue, then where you were physically when the work was being done is where the wage claim is filed. If the local DOL has a problem with the claim, they will say so.

    There are several potential problems here. The big one is that someone has to actually read every word in every document you have. No one on this website has done so (or likely wants to do so). Part of your argument is a "contract law" argument, meaning you had a contract, and the other side violated it. Any contract law resolution always starts with having a local contract law attorney read the contract (plus any supporting documents). This is a labor law website, meaning laws the government forces on both parties. It is easy (more or less) to get a labor law answer because every party is working under (more or less) the same rules. No one has to read your specific documents to get (most) labor law answers.

    Second problem. I do not know what your former employer knows, but there is a really good chance that (correctly or not) they are going to argue that you are not an employee, but just some vendor who failed to do their job. If that is true (and only the government can say otherwise), then your sole recourse would be in court (a contract law solution).

    Third problem. Even if you can get the government to agree that you really are an employee, then your former employer will claim (possibly correctly) that you are Exempt under the Outside Sales exception, that you were a really bad employee who failed to actually earn any commissions under the laws of West Virginia and the exact wording of the contract. Whether this argument is correct or not, we again are talking you getting a local attorney. I am fairly sure that we have no West Virginia commission experts on this website.

    Filing the wage claim works or it does not, but it does not cost you any money up front. The big problem is that you really should have had the documents reviewed PRIOR to putting any work into it. State law is really all over the place on commissions, even if you legally are still an employee.

    I understand that this is not what you want to hear.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      Wow, what a thoughtful response. Thanks!

      I never thought someone would put so much time into an answer.

      Situation was that I was an employee. For the last 3 years, I sold roughly 80% of the company's revenue, certainly better than the next 3 sales people combined. The CEO made a "deal with the devil," and moved the company from Ohio to Michigan because MI waved $250k to relocate. So he began firing anyone not in the new home office.

      Nov 30, my immediate boss told me I was fired, and at that time said I could stay on, and any deals I closed I'd get 20%, but no salary. I have every conversation recorded.

      Beyond the emails and recorded conversations, does the fact that I continued to have a company email and that he was sending instructions on this client and that well after I was supposedly "out?"


      • #4
        Sorry for the sentence fragment, it's too late

        I meant to continue, does all the contact between the CEO and me, indicate any kind of implied contract? As I mentioned, I sent back the contract he proposed, but I never got a copy that he signed and suspect he never did sign.


        • #5
          I do not know. I am not a West Virginia contract law expert, or a West Virigina commissions expert, and even if I was those things, I would still have to read what paperwork (including e-paperwork) that does exist. You can take exactly the same facts to different states and get different answer. But at the end of the day, you need to take all of this information to a West Virginia contract law attorney who is going to have to actually read it. There is no such thing as a one-size-fits-all answer with contract law that does not involve looking at the actual paperwork.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)


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