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":
In the recently decided case Kao v Joy Holiday, the appellate court confirmed that a worker waiting for his H1B visa to be approved / processed must be treated as a regular employee and be paid accordingly. In that case, the employer claimed that Kao was just a trainee during the 11 months of working before having his work visa approved. The court disagreed. The court stated: employee is defined under the FLSA as “any individual employed by an employee and is broadly construed to encompass virtually “all workers not specifically excepted.” Patel v. Quality Inn South (11th Cir. 1988). The FLSA protects undocumented aliens, making an initial lack of a work permit irrelevant. Only a person receiving training but no salary, and whose work serves only his or her own interest, is a non-employee trainee under the FLSA. Walling v. Portland Terminal Co. (1947).
California law is in agreement on this point with FLSA (Federal Labor Standards Act), applying an even broader definition of employee than does the FLSA. Martinez v. Combs (2010). An employee is “any person employed by an employer,” an employer is one who “employs or exercises control over the wages, hours, or working conditions of any person” and “employ” means “to engage, suffer, or permit to work.” “To employ, then, . . . has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” The definitions are sufficiently broad to encompass a proprietor who employs a worker by contract, permits work by acquiescence, or suffers work to be performed by a failure to hinder. A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.”
Thus, if you report to work prior to receiving a work permit from the immigration authorities, you have the same regular employee rights to compensation, including minimum wage, overtime, meal break and rest break and any other rights and protections as available under the law to all other employees. You may find below a link to download the full Kao v Joy Holiday decision.
Many employees and employers believe that workers who work illegally or whose residence or immigration papers are otherwise not in order and do not allow them to lawfully work in the us cannot enforce their employment rights, such as filing claims for discrimination, wrongful termination, unpaid wages and other workplace violations. This is not correct.
Like with most other civil rights, immigration status has no relevance to a person's ability to make a claim against his or her employer. Under California law, “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Lab. Code § 1171.5(a). The California courts has emphasized that California “statutes leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws.” Hernandez v. Paicius (2003).
Therefore, any employer who thinks that he can get away with discriminating, harassing, retaliating or not paying correct to an employee whose visa has expired or wasn't approved risks being sued by that employee in exactly the same way as he would be by a US citizen or a permanent resident. It's important to remember the following distinction: it's true that it's illegal to hire or be hired for work without proper employment authorization. However, if an employee who is not authorized to work in the US was hired to work, then he has virtually the same rights as any other employee.
Generally, you cannot sue your employer for something that might happen but hasn't happen yet. Thus, even if you are absolutely sure that you will be illegally fired because of your age, you can't file a claim for wrongful termination and age discrimination in court until your employer actually terminates your employment. However, there are at least three things you can and should do to enhance your potential case while you are still employed there:
(a) Continue doing the best job you can, so that any argument that the reason for your termination is your performance becomes week and unconvincing. Poor performance is one of the employers' favorite excuses for terminating an older worker, so the better your performance is, the harder it will be for the employer to defend the case.
(b) Keep track of all the older people who are being "laid off" or replaced with younger ones. Find out ages of those who are fired and hired. This will help you determine whether there is a clear pattern of discriminating against older workers. This can be very useful in proving your age discrimination case in the future.
(c) Pay attention to any of management's statements, e-mails or postings on social media or anywhere else that in any way suggest that they prefer to hire and keep younger employees over older ones. Ask your co-workers if they have heard anything about the employer's attempts to get rid of older workers or about the company's strong preference for hiring younger employees. This type of evidence, even if it's just one e-mail or one statement, can make a difference between having no case and having a case, and between having a weak case v having a stronger case.