Company’s Docking of Gross Sales Not Lawful
Q I work for a distribution company in Los Angeles and am paid only a commission. Recently one of my customers filed for bankruptcy reorganization. This account generated $5,000 in gross sales and a commission of $1,000.
Now, my company has deducted $5,000 from my check--the equivalent of the gross sales. I contend that I can only lose the commissions that I earned. My company insists its deduction is legal. Who’s correct?
--B.F., Irvine
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A You are correct. An employer may not lawfully hold an employee responsible for business losses not attributable to the employee’s dishonesty, intentional misconduct or gross negligence. None of those elements caused your employer’s loss in this situation when the customer filed for bankruptcy.
It is true that under most circumstances the employer can deduct the commission that was paid on such a sale (unless a written commission agreement defines a completed sale in a way that would preclude such a charge), but it is illegal for your employer to charge you for the entire amount of the sale.
You should ask your employer to pay you the $4,000. If the employer refuses, you can file a claim with the state labor commissioner.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
When Might Benefit Have to Be Repaid?
Q My husband and I are planning our second child and don’t know whether I will be able to go back to work after the baby is born.
I have been with my company for eight years. When I had my first child, my company’s policy provided me with full salary for the first month of leave. During the next two months I received disability pay from the state.
If we decide that I will not return to work, would I have to repay the one month’s salary to the company and the state disability? If I were to return to work for a couple of months only to find that juggling work and motherhood is too much for me, would I be liable for the pay I received during my leave?
--D.C., San Pedro
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A You do not have to return disability pay from the state. Maternity leave payments from your employer may be returnable.
There is no legal requirement that a company pay an employee who is on disability leave, unless the company has a policy of providing such pay. If the company’s policy does not require the return of maternity leave pay, it can’t impose such a requirement retroactively.
The rules might be different, however, if the company defines this payment as some benefit other than salary.
A company, for example, can pay moving expenses or other benefits and require the employee to return the amounts if he or she does not remain with the company for a certain amount of time. If the money you received is defined as a benefit other than wages and is conditioned on your return to work for a period of time, you might have to pay it back if you do not fulfill that requirement.
--Don D. Sessions
Employee rights attorney
Mission Viejo
Fitness Center Not Open to Everyone
Q The company I work for has an on-site fitness center, but I was informed that only nonunion employees are allowed to use it. Is this legal?
--D.D., Culver City
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A The National Labor Relations Act, the federal law regulating relations between companies and unions, forbids discrimination against employees based on their union membership or support. It also requires an employer to bargain with a certified or recognized union over employee wages, hours and working conditions.
Without more information, it is unclear whether your company can legally limit use of the fitness center to management and unrepresented employees. At minimum, your company has a legal duty to bargain with your union over use of the fitness center by unionized employees. Any refusal to bargain over the issue would be an unfair labor practice.
In some circumstances, a company may also be committing an unfair labor practice if by restricting gym access it was intending to discourage support for a union.
Discrimination can be difficult to prove, however, particularly if an employer and union have a long-standing working relationship.
Under your collective bargaining agreement, your employer may already have a contractual obligation to allow union members to use the fitness center that is enforceable through grievance arbitration procedures.
Regardless of the circumstances, your union needs to be made aware that you and other employees object to the employer’s restrictions on access to the fitness center. You should ask your union whether your employer has bargained over the issue.
Depending on the terms of your contract, you may also want to file a written grievance with your union protesting the policy as a violation of the union contract.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
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.
