Employee Can’t Be Fired for Pressing Commission Claim

Q: Four years ago I was recruited by the steel company I presently work for. I was given a written offer that defined the salary, car allowance and commission plan.

During the second year, I should have been entitled to commissions. When I brought this up to the owner, he said he’d look into it. The second time I brought it up, almost two years ago, he again avoided the issue and stalled on it. The commissions due have accumulated to more than $35,000, but it seems that the owner has no intention of ever paying.

Is there a statute of limitations on commissions? Should I find another job before I press for settlement? Can I lose my job for demanding payment?

--D.B., Fullerton

A: If you have a formal plan in writing that entitles you to commissions, there is a four-year statute of limitations for filing a claim, beginning when the commissions were first due.

Because commissions are considered a form of wages and there is a law in California prohibiting employers from terminating employees for filing wage claims, it would be unlawful for your employer to fire you for pressing a commission claim.

But pursuing a claim for commissions while still employed at the company may make for an uncomfortable working environment, particularly if your employer continues to refuse to pay. You should take this into account in determining the best course of action to follow.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Meeting Time Must Be Compensated

Q: My supervisor has been requiring me to come into work on my days off and hours off to discuss a work-related incident I was involved in. She claims these meetings are mandatory and that I have no choice but to attend. I am a part-time employee who works the swing shift (3-11:30 p.m.). Can my employer legally request my presence at work during my “off” times? Shouldn’t these meetings be arranged during my regularly scheduled workdays and shifts? Can I refuse?

--G.R., Long Beach

A: Unless you are covered by a union contract that sets your working hours, your employer can require you to attend meetings on your days and hours off. And your employer can fire you for insubordination if you refuse to attend a mandatory meeting.

But all is not lost. By law, time spent in meetings called by an employer is considered work time. This has three favorable consequences.

First, assuming you are an hourly, or nonexempt employee, you are entitled to be paid at your regular wage rate while attending these meetings.

Second, under California wage regulations, an employee must be paid a minimum of half a day’s work whenever the employee reports for work as required by the employer. Similarly, when an employee is required to report to work a second time in any one workday, the employee must be paid a minimum of two hours’ pay. Because you regularly work eight hours per day, these rules require your employer to pay you a minimum of four hours’ pay every time you attend a meeting on a day off, and a minimum of two hours’ pay every time you are called back to attend a meeting after you have left work for the day.

Third, if your total hours of work (including attendance at the meetings) exceed eight in a day or 40 in a week, you also will be entitled to overtime pay. Your overtime pay will be calculated at 1 1/2 times your regular wage rate when you work more than eight hours in a workday or 40 hours in a workweek. Your overtime pay will be calculated at twice your regular rate when you work more than 12 hours in a workday.

Under new state regulations, which are being challenged in court, nonunion workers will lose their right to daily overtime beginning Jan. 1. For most employees, the new regulations will not affect overtime requirements for work after 40 hours a week.

To make a claim for back pay, contact the state labor commissioner’s office.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

No Duty to Provide Paid Sick Leave

Q: My wife is pregnant, and I recently checked into the paternity leave policy at my company. I would be eligible for family leave time without pay, but I found out that nonexempt employees can use accrued sick leave as paid paternity leave. Since I am an exempt employee, however, I do not have a prescribed amount of sick time and therefore no specific amount accrued.

As a result, I can’t use sick time for my paternity leave. It seems unfair to allow a nonexempt employee to do so but not an exempt employee. Is this legal and proper?

--S.C., Encino

A: Because employers are not required to provide paid sick leave, your company is not obligated to provide paid sick leave to exempt employees, even if it is provided to nonexempt employees.

However, you should check with your employer to see if there is a program that provides for paid leave in these circumstances.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

*

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.