In Jan. 2013 , I worked for 8/hr plus comm. ($12 for every account completed after the 27th). The executives were not happy w/ the # of accounts setup. In order to incentivize us, they immediately took us from w2 to 1099 w/ & turned our base into a tier of anything after 42 accounts is worth $17 each. The pay was changed 1.5 months later. They stated if our account didn't pass quality control, we would not be paid for that account. 2 wks later, they took us back to w2 at 8/hr w/o commission. A position at12.50 an hr/ with comm. opened up. She stated that I was the perfect candidate but needed the directors ok. I followed up with the director. She said I couldnt move bc I was a strong asset in my dept. & the position would be terminated. 2 weeks later, the position was filled.
Employment / Labor Attorney
You cannot sue an employer for changing your pay structure or denying a promotion, unless it was done for unlawful reasons or breached the terms of an employment contract, neither of which is apparent here. As long as the employer is paying no less than minimum wage for all hours worked and covering overtime premiums if you work more than 8 hours in a work-day or 40 hours in a work-week, it is complying with the law. The one thing you mentioned that very well may have been illegal was switching you from a W-2 employee to a 1099 independent contractor during that 2 week period. They probably realized they could not do that and switched you back. If there is more to your story, you should consult with an employment law attorney to better understand your rights.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
5 lawyers agree
Class Action Attorney
As the previous attorney wrote, employers can typically change your pay structure unless it alters a contractual employment agreement. If you were doing in-house sales-related work and were switched form a W-2 employee to a 1099 independent contractor, that sounds like likely misclassification.
Based on the facts here, the denial of promotion does not appear actionable. Unless it involved some element of discrimination, employers can promote or not promote whom they please.
Employment / Labor Attorney
You should contact an employment attorney who handles wage / hour cases for clients. Based on the facts you describe, you may have a claim for misclassification as an independent contractor, which carries a hefty penalty under Labor Code 226.8, which may result in penalties up to $25,000. Furthermore, you should be concerned about any unpaid overtime, or unpaid wages based upon the commission structure applied, as well as if you are getting your rest periods and meal periods in accordance with California law. Attached below is a link that will help provide general info concerning rest period and meal period requirements.
Because most plaintiff-side employment attorneys offer a free consultation, you should consult one immediately to know what your rights are under California labor laws.
Any post of discussion above is general in nature and is not intended to and should not be construed as legal advice. Furthermore, the above posting does not create or establish any attorney-client relationship. Contact an attorney as soon as possible to discuss your legal options. [John D. Wu is licensed to practice law before all California federal and state courts]