In-accurate Commission Pay
I have been working for the same company for over 3 years and recently I have found out that a certain number of part numbers have not been included in our commission report. This affects several employees at my office and former employees. Is there anything that we can do to get paid on these items we have sold and not gotten paid on. I have several reports on hand that prove my allegations. Please let me know before I go any further. Everything I read on the TWC website tell me that I have 180 days to file for this but I am unsure if that includes wages that we were unaware that we were not getting.
We found this out when upper management started changing part numbers on items that we sell or sold on a regular basis. Also one of the senior purchasing agents confirmed the why these particular part numbers were being change. Please send any information to me so that I can help all of my fellow co-workers and I out in getting what is owed to us.
Answers (2)
The TEC has nothing to do with your problem. Rather, the Texas Dept of Labor, or the Fair Labor Standards Division of the U.S. Dept Labor presides over WAGE claims. Because your problem is commissions and not wages, underpaid or unpaid, neither of these government departments has jurisdiction.
You will simply have to add up the total amount owed to you and your co workers over the last 4 years (four years is the farthest back you can go, as the statute of limitations is 4 yrs for a breach of agreement such as this). Remember, YOU WILL HAVE TO PROVE that there WAS an agreement to pay commissions -- and the percentage or way of calculating the amount -- for the parts in question.
The problem is that your employer will probably then target you and your coworkers for termination if you set out on this course. Unfortunately, there are no protections for your job security as there is with such things as reporting unpaid overtime to the U.S. Dept Labor; the cause of action afforded the employee for termination because of reporting unpaid overtime is called "retaliatory discharge." We could be very creative and sue for "intentional infliction of emotional distress" should your employer terminate you all for seeking the commissions, but that is the very weakest cause of action in the entire jurisprudence of the Great State of Texas. So, you and your coworkers will likely have to choose between getting paid the commissions, and keeping your jobs.
Again, if you all choose to seek the payment of the commisisons, GET COPIES OF A BUNCH OF DOCUMENTS OFF THE PREMISES (or email them to yourself) WITH WHICH YOU CAN PROVE THE EXISTENCE OF THE AGREEMENT TO PAY THOSE COMMISSIONS, AND THE WAY THEY ARE CALCULATED! Once you are terminated (and you will likely be), you will no longer have the ability to get at the documents. Your lawyer will be able to request production of documents proving the agreement, but (not surprisingly) employers and other defendants sometimes "lose" them, or claim that they can't locate them, or worse, simply get rid of them, and deny their existence.
If you want the very BEST CHANCE of success should you decide to demand the commissions be paid you, GET ALL THE OTHERS TOGETHER IN THE SAME BOAT AND HIRE A LAWYER FOR THE WHOLE. This will divide the costs of litigation so that it is affordable, and should the employer retaliate against all of you, it will look the worst it can look to the jury.
posted by Dana LeJune | Jul 25, 2004 12:00 PM [EST]
Yes, you may be able to sue for breach of contract. You can go back 4 yeays for a breach. It will depend on what your "deal" with the company is. If the "deal" was to pay you for all sales and they have not, then they have breached the agreement.
posted by Trey Henderson | Jul 25, 2004 08:48 AM [EST]
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