When A Employer Doesn't Pay

[GabrielaSweetheart]

Ernie is a Kirby distributor and I've worked for him before. Well I was dating a guy who's worked in his office for quite some time. Ernie got way too involved in our personal lives and I told him a couple times so that started our rocky relationship.

Ernie doesn't like me because he knows that I'm a provider but I did work for him for a week and gave it a shot and gave up providing. Well i was a canvasser, and for every knock in sale we get a percentage of the commission. So I made a knock in sale that week and that friday I was unable to make it to the field because I went to pick my car up from Pep boys early in the morning, leaving a big enough window for if anything came up I could still make it to the field.

Well, after spending a couple hours there and trying to drive my car off, I come to realize that there is something really wrong with my engine. So I was unable to make it to work and unable to call anyone because my phone was dead and my charger was with Ernie's other employee.

Tried to go to work the next day and Ernie told me he didn't want me working there. Well that was fine because I HATED working there anyway, and I'd be getting a check the next week for my sale. Next week comes and no check. I asked the guy that i was dating about it and he said that it would be there next week (today).

So i go to the office today and there's no check. So i call Ernie and he's a complete dick and says "I don't know what Check your talking about" I stated I had made a knock-in sale and should've been getting a nice little piece of that commission, as to which I get a swift click response. He just hung up on me!

So, because he doesn't like me, he is refusing to pay me. PLEASE tell me there is something I can do about this, because before I left or got fired he said it would've been a good $200 check!

[ShysterJon]

Hey, Gabriela! Ever hear of this term: TMI. Haha.

But I won't pick on you any more because you're out $200.

The Texas Payday Law, found in chapter 61 of the Texas Labor Code, provides, in relevant part:

Sec. 61.014. PAYMENT [OF WAGES] AFTER TERMINATION OF EMPLOYMENT.
(a) An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged.
* * *

Sec. 61.015. PAYMENT OF COMMISSIONS AND BONUSES.
(a) Wages paid on commission and bonuses are due according to the terms of:
(1) an agreement between the employee and employer;
* * *
(b) An employer shall pay wages paid on commission and bonuses to an employee in a timely manner as required for the payment of other wages under this chapter.

See Tex. Labor Code §§ 61.014, 61.015.

The following section of the Texas Administrative Code is relevant regarding payment of commissions:

Tex. Admin. Code § 821.26. COMMISSIONS.
a) For purposes of § 61.015 of the Act:
(1) Commissions or bonuses are earned when the employee has met all the required conditions set forth in the applicable agreement with the employer. To change an agreement, there must be prior notice as to the nature and effective date of the changes. Changes to written agreements shall be in writing.
* * *
(b) Unless otherwise agreed, the employer shall pay, after separation, commissions or bonuses earned as of the time of separation.
(c) Commissions or bonuses due after separation from employment are payable based on the routine or practice specified in the agreement when the employee was employed, or on any special agreement made between the employee and the employer upon separation.
* * *

See T.A.C. § 821.26.

You might want to write Ernie and make him aware that you know the law. Explain BRIEFLY why you think he owes you commission, explain why you think he owes you the specific amount ($200), and give him a deadline to pay you. Send the letter to him certified mail, return receipt requested, so you have proof he got the letter. If he doesn't pay you what he owes you, file a complaint with the Texas Workforce Commission by using this form:

http://www.twc.state.tx.us/ui/lablaw/ll1.pdf

Please report back -- BRIEFLY -- what happens. Good luck!

[SofaKingFun]

Originally Posted by ShysterJon

Explain BRIEFLY...

That brought a chuckle.

Thanks ShysterJon.



GabrielaSweetheart, good luck. That cold calling selling is a tough gig.

Hope it all works-out for ya', hun.

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[GabrielaSweetheart]

Thank you so much for the info shyster. It definitely will help me, so he doesn't think im some ditzy girl who isn't going to do anything about it. I do not like this guy at all, so itll just feel all the better to rub it in his face that I actually know the law (: definitely a huge help. Can't thank you enough!

[Boltfan]

Hey Gab,

One thing to note on the wage claim. Were you an actual employee or just considered an independent contractor. Do you have any sort of employee manual showing the commission structure (how much you get per sale). Those will be very helpful in stating your case to both your former employer and the TWC. If he legitimately owes you money he could be forced to pay a penalty if a wage claim is found in your favor so be sure you make it known to him you are preparing the wage claim should he pay you in a reasonable time.

I am lucky to have never lost a case with the TWC but the key is to be prepared and as SJ mentioned, don't give TMI. Nothing a TWC officer hates worse than non-relevant information being presented.

[shooter1a]

Gabby, if that does not work remember the words of that great litagator, Malony.
"Sue The Bastard"

[i812-)]

Hey Gabby, so far you have rceived some excellent advise. But I will chime in my $.02 worth also. Fair Labor Standard Act states that an employee must be paid minimum wage for the hours work.

If you have the days and times you went out door to door selling you can file a complaint with the department of labor. Their opinion is the complianant is right till proven wrong which is only determined in a FLSA audit. During the audit they will investigate all the employees who work(ed) for him and is a big pain in the ass. Just another threat you can make to him.

Boltfan mentioned being an independant contractor (IC). The IRS has 3 page pamphlet called employee vs independant contractor http://www.irs.gov/pub/irs-pdf/p1779.pdf they also have a little work sheet to fill out for them to determine which you might be. Sorry couldnt find that for you. In the event you are given a 1099 as IC you may contast that and have the IRS determine if your a IC or employee. If found to be an employee he will get hit up by texas for unemployment he should have paid on you as well as your share of FICA and MEDICARE. However this could bring up your other occupation which will get you in trouble if your are declaring that income.

Not sure if that helps you out but gives you some information on other options available to you.

[ShysterJon]

No offense, but I can't imagine the Department of Labor doing an audit over a $200 wage claim. Maybe things are different in Missouri, but the regional DOL office in DFW is very busy and will only run audits on significant claims involving multiple employees. If I were Ernie's lawyer and got a letter from an employee threatening to go to DOL, I would consider that a hollow, unrealistic threat.

One thing I've learned practicing law for 26 years is, never make a threat to do something you're unwilling to do or that doesn't have a reasonable chance of getting what you want.

[guest060112-3]

if that doesn't pan out, she could always file a complaint with the Better Business Bureau.
It won't get her the money owed, but it will put out a warning to anyone who cares to look.

You could also file complaints on yelp and google so that the guy has poor reviews-- but that's a whole 'nother kettle of fish. You want to exhaust your options to get paid first, and then of course, cover your butt so you don't get charged with slander by complaining online about him.

[ShysterJon]

Originally Posted by SugarBeth

if that doesn't pan out, she could always file a complaint with the Better Business Bureau.
It won't get her the money owed, but it will put out a warning to anyone who cares to look.

Actually, BBB offers an informal mediation program to try to get the parties to negotiate a settlement. I'm not saying Gabriela should file a complaint with the BBB. I'm just pointing out that if she does she could get her $200.

[Jack Nicholson]

You could file a claim with the Texas WorkForce, BUT, you could be stirring a hornets nest, like when they ask you where you work, etc. Be carefull!

[amusemeant]

My hubby is a mechanic and once was cheated out of a last paycheck working for a popular neighborhood mechanic shop in west Houston. I called several times, and eventually I told the manager that I was going to make a sign saying that their shop cheats little kids out of their grocery money, then bring my then 5 y/o daughter up there to picket their shop with me til they paid me. A few minutes later the manager called me back and let me know when hubby could pick up the check, so I never actually had to go up there. But I would have and they knew it. A little bit of livid helps a lot of things, especially when you're not planning on remaining friends after.

Some people just suck and they need to be pushed a bit to do the right thing. I'm not saying picketing is your right answer, but if he finds out you even have these forms and you're not an idiot (which as we know many do think of us), he will probably opt to pay you than to start any trouble for either of you.

[i812-)]

Shyster, no offense taken. You are correct I have no idea how busy the DOL in DFW is. In Missouri it seems like they pursue each claim. It was a suggestion to her so she could tell him her possible remedies. And no offense, there may be other compliants against him that we don't know about that may trigger an audit.

[amusemeant]

Originally Posted by i812-)

Shyster, no offense taken. You are correct I have no idea how busy the DOL in DFW is. In Missouri it seems like they pursue each claim. It was a suggestion to her so she could tell him her possible remedies. And no offense, there may be other compliants against him that we don't know about that may trigger an audit.

I agree. And not paying your employees is an offense that will get a padlock put on your front door.

[GabrielaSweetheart]

Thanks guys, I appreciate the advice.