A group of sales employees was transferred to a different job to help reduce a backlog of work. Instead of getting base pay and commissions, we were promised that if we took the new positions we would get our base pay plus a fixed amount based on our average commissions and that they would not change this agreement without 90 days notice. A lot of us would have looked for another job had we known that they would renege on the 90 day promise. What should we do?
Thanks for the great responses. Am I protected from retaliation if I complain about it? We're taking a huge pay cut and I need the 90 days to find another job.
Employment / Labor Attorney
Whether or not you have an enforceable contract depends on the precise words used in making the offer. If there was a clear meeting of the minds of the essential terms of the employment agreement, the employer may be held bound to its promises. Contracts can be verbal as well as written but sometimes more open to disagreement. But if there were a number of employees who were promised the same thing and accepted the offer, it is more likely to hold the employer to its promises.
What to do about it depends on how much is at stake here and whether it is worth taking legal action with a lawyer, or to explore other alternatives. It would be worth your while for you and, preferably, other affected employees to meet with an experienced employment law attorney in your area, for a legal assessment of the merits of your case and discuss what options you have available to you.
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.
Real Estate Attorney
If your employer told you that he would give you 90 days notice knowing that some of you would otherwise seek a new job, and you continued to work there, you more than likely have an enforceable contract.
Remind your employer, politely, of his promise. Don't make yourself obnoxious, but you should remind it again from time to time through the 90 days so that the employer cannot say that you accepted the change. To enforce the promise, you can either go to court or seek assistance from the Division of Labor Standards Enforcement. The statute of limitations is three or four years, depending on which remedy you want, so I would do nothing until your employment ends.
I agree that you need to meet with a plaintiff's labor lawyer to discuss your strategy here.
There is a question of proof of the promise, and there is a question of life at your job after the claim. It is not possible to advise you as to either of those in this forum.
I can say, however, that your remedy would be either before the California labor commissioner or in court. Your lawyer will be able to better advise you as which of those, if either, you should pursue.
Best of luck to you.
Employment / Labor Attorney
Having commission agreements often gives you a little more legal protection when the employer wants to change the terms of a commission agreement in the middle of the game. That is flat-out illegal.
Your commission terms can change prospectively, but the employer cannot go back in time and change the rules once you act on the old terms.
You and your co-workers would be most welcome to discuss this issue by an experienced wage and hour attorney, who will analyze this issue and see if the employer is playing fast and loose with any other wage laws.
This stuff can be tricky! Don't go it alone.
David A. Mallen
David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.