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Commission question - CA

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  • Commission question - CA

    I work in theater sales dept.
    I get paid a commission on all orders after we reach our quota.
    I am paid some indeterminate time after the show closes.

    Because I am laboring now (procuring clients, processing payment) for shows that may not open for a year or more, I asked my employers what should happen to my future commissions if I left my post.

    To my surprise, they said that I would have to be presently working at the company at the time they ISSUED the check in order to be paid.

    I know that can't be right.

    Does anyone know the proper commission protocol and/or what I can do to protect myself?
    Last edited by Lawcurious; 12-23-2005, 12:31 PM.

  • #2

    Actually, that can be right.

    Commission is part of your payment for working. As long as your compensation does not go below the minimum wage, the employer can restrict payment time frame and how it is paid.

    In essence, the employer can require you to be present for any commission to be paid and they should clearly state when commission is finally due to you. If they do not clearly state when it is due, then you need to ask or get it in writing when and how the commission is structured.

    You might have a case if, for instance, you are paid $4.00 per hour plus $2.00 per every ticket sold with the assumption you would sell at least one ticket per hour. If your general wages are below the minimum, then you may have a case there. But commission is generally a benefit that can be negotiated, much like vacation, sick, health insurance, etc.


    • #3
      Hopefully, our California guru will be along soon. However, my understanding is that commissions are considered vested wages in California (unlike most other states), so the employer must pay them if they are earned at the time of termination. If you want to confirm after the holidays, you can contact the Division of Labor Standards Enforcement of the Employment Development Dept.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


      • #4
        California is Always the Exception

        Thanks for letting me know. I typically find that DC and California run hand in hand on many things. However, this is definitely not the case on commissions. I do hope the Cali guru does come along as I would like to know more about it as well.


        • #5
          In California, Commission payments can be determined by any valid contract. Thus, the issue of commission forfeitures upon termination is a question of the contract.

          In general, terms of contracts that call for the forfeitures of commissions based on termination are unenforceable because their terms are “unconscionable.” However, not all such contract terms are unconscionable. For instance, if the amount of work needed to close the sale after termination greatly exceeds the initial work in “getting the lead,” then this is fine. In addition, terms that are known in advance by the employee and are triggered by the employee quitting, rather than being fired, are more readily enforced. The reasoning is that the employee knew the trade offs when she quit. You should keep in mind, that this is only one factor in determining the enforceability of the contract and is not determinative by itself.

          I can not comment on the specifics of this case here, but in general, if the terms seem manifestly unfair, then they probably are and will not be enforced.
          Michael Tracy

          Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.


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