As an employee who is about to be laid off or terminated, you may find yourself in the following dilemma: an employer offers you a certain amount of severance in exchange for your signing a severance agreement and release of all claims. At the same time, you believe you are owed earned bonus or commissions that are to be paid at a future date. The employer disputes your entitlement to those additional wages, and at the same time pressures you into signing the severance agreement sooner than later, if you want to receive that severance. The question is - if you accept severance and sign the severance agreement, can you still bring a claim for unpaid bonus or commissions, if you choose to do so?   

California law provides for significant and important protection to employees in these types of situation.  California Labor Code section 203 states that an employer has to pay all wages earned in full and cannot require signing of a waiver as a condition of paying those wages. Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 365. This effectively means that when you sign any type of severance release, you are not waiving your claim to any earned and unpaid wages, and you can bring a claim for unpaid wages, earned commissions and bonuses to which you believe you are entitled to in even after you sign that severance agreement. Of course, this only applies to earned, performance based extra wages and not to discretionary bonuses. 

The California Supreme Court held that obesity may qualify as a protected disability within the meaning of FEHA (Fair Employment and Housing Act), if medical evidence demonstrates that (1) it results from a physiological condition affecting one or more of the basic bodily systems and (2) limits a major life activity. Cassista v Community Foods, Inc. (1993).  "Physiological" means "relating to the functioning of living organisms" and includes genetics, i.e. genetic reasons for obesity. 

Over the past few weeks,  a number of people contacted me who were terminated in part or in whole because they refused to sign the acknowledgement of receiving a disciplinary notice (warning) or a performance review that they thought was unfair. In most cases, refusing to sign those types of documents a mistake, and for several reasons:

First, your employer will normally ask you for your signature to only acknowledge that you received the document; not that you agree with its contents, so there is really now downside to signing it.

Secondly, an employer can lawfully terminate any at-will employee for refusing to sign that type of document, referring to it as insubordination. In the absence of significant evidence that the true reason for termination is discriminatory or retaliatory, this would not be a wrongful termination under the law.

Lastly, being terminated for refusing to sign any type of warning or PIP is particularly costly if you are terminated right before a portion of your RSU vests or your bonus is earned. In this case, you may be losing a significant amount of money for no good reason.   

I can't think of any good reason to refuse to sign a disciplinary notice. It can't make your situation at work better, but it can make it worse by ending your employment and/or also hurting your earnings that you would otherwise could have received. 

Many employees and employers are not aware of their obligation to set a commission plan in writing. Effective California Labor Code section 2751 (enacted back in 2013) requires employers to provide written commission plan agreements to all employees who perform services in California and whose compensation involves commissions. The agreement must  explain the method by which commissions shall be computed and paid. The commission plan must also be signed by the employer and the employer must obtain a sign receipt from each employee.  

This law incorporates the definition of commissions from California Labor Code section 204.1 which  defines commissions as "compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount of value thereof."  The types of payments excluded from this definition are productivity bonuses, temporary incentive payments and bonus and profit sharing plans, unless there has been an offer by the employer to pay fixed percentage of sales or profits as compensation for work to be performed. 

Clearly, the purpose of this law is to reduce the chances of vagueness and misunderstanding between employers and commissioned employees regarding their compensation structure and create a binding, enforceable contract.  ​

The video below explains a key difference between bonus payments and commission, and why this difference is important. 

Here are top three most common mistakes that we see employees make over and over when requesting medical leave under FMLA  / CFRA or disability leave under ADA / FEHA:     

1. Refusing to provide clarification to previously provide medical leave note upon employer's request. Your employer might not be clear about the reasons for you inability to report to work and could ask you to go back to your doctor and get clarification in a form of additional medical note. Many employees immediately reject that type of request on the grounds of medical confidentiality and privacy. In many cases, this is a mistake and a fight simply not worth fighting. Your employer is entitled to have basic information about the reasons for your inability to report to work. While they may not be entitled to see your medical records or know your exact diagnosis, at they have the right know what physical limitations prevent you from working. Employee often insist on not providing this information and end up getting fired where it was so easy to avoid by simply giving the employer what they need, assuming that their request is reasonable.  

2. Proving a medical leave note that directly or implicitly suggests that the duration of the needed leave is unclear.  Under the law, an employer doesn't have to provide leave of indefinite duration, and in most cases an employer can safely terminate an employee, where it looks like that employee might not ever come back to work. Therefore, if you intent to return to work, you should make sure that you medical note has your date of return to work with or without restriction, or at least an anticipated date of return, even if you / your doctor is not 100% sure that you will be able to start working again on that day.. Later, you may have the option to extend your leave. You should not rely on your doctor to write your medical leave note the right way, and you should definitely read it yourself before passing it to your employer.  You cannot expect your doctor to know your legal rights. Your doctor's specialty is medicine; not disability laws. 

3. Being tough and trying to work through pain. In the video below, I talk about how being tough and trying to work through pain can lead to problems at work: 

One of the most common legal questions that employees have is whether or not they can be fired if they have a disability or if they take disability leave or medical leave. As stated in the video below, the answer to this question is a bit more complicated than "yes" or "no":