Termination is when your employer ends your working relationship and you no longer work at the company. You must be paid for all hours worked until termination.
Missouri statutes protect payments of outstanding commissions. A Missouri statute specifically addresses failure to pay sales representative commissions, and provides liability to an employer in a civil action for actual damages if that employer fails to pay all outstanding commissions. Per the commissions’ statute, when the contract between a sales representative and a principal is terminated, all commissions then due shall be paid within thirty days of such termination. Any and all commissions which become due after the date of such termination shall be paid within thirty days of becoming due. The statute further provides: “Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment." That same statute also allows employees who were not paid their commissions additional damages including attorney fees and costs. You should consult a lawyer to undertsand how the rules may apply to you. The subject of commisions can be tricky. If you believe that commisions you earned were unfairly withheld, you should consult a lawyer to understand how the rules may apply to you.
How to Make Money from Your Side Hustle . . . And Keep Your Day Job COMPENSATION/EMPLOYMENT by Irene Bassock [email protected] You like your job and you’re good at it. But, you’re also ambitious and see an opportunity to make a little money from a side business. The extra income would be great and who knows where it could eventually lead. What should you think about before you launch your new gig? First, does this side job conflict with your employer’s policies? Depending on how restrictive those policies may be, your venture could lead to discipline, up to and including termination. It’s a big risk to take. Take the time to review your employer’s policies; and, if you have any doubts, err on the side of caution. For example, some employers prohibit all other paid employment to avoid the appearance of any conflict of interest. Ask your manager for clarification and approval and make sure that it’s in writing - you want to stay protected months or years later when and if your manager leaves. And, if your employer’s policy outlines another type of approval policy, then follow that process. What if no policy exists? Your employer may still have concerns about your side hustle, especially if it might conflict with your loyalty to the employer or if it gives another company a competitive edge in the market. This is so even if it’s a slight advantage. For example, let’s say you are employed in IT for an insurance company and you want to pursue a side gig providing event photography. What if you you accept a photo-shoot job for another insurance company? It might sound far-fetched but your employer could view that gig as assisting its competitor - even if the activity doesn’t involve your primary work or increase the market share or customer base of the other company. Proceed with caution when providing any type of service for a competitor. And, again, when in doubt, ask for permission in writing before taking on that side hustle. Once you’ve figured out whether you can pursue your new venture, make sure that you separate it from your employer. This means that you should never use your employer’s systems, offices, equipment or information - don’t use your work computer or email system for your side business, and avoid using the photocopier or mailroom. Instead, keep everything on your personal devices, use your own supplies, and conduct all of your activities outside your employer’s offices. Also, use your own time for your side business. Regardless of whether you are an exempt worker and not required to record your time, do not use business time that your employer expects you to work for them to pursue your side hustle. Your employer could view it as encroaching on time that you were supposed to dedicate to them and your job. Finally, take extra steps to ensure that you keep your performance at its absolute, highest level. Don’t give your employer any reason to think that you’re spending too much effort on your side job while your primary work deteriorates. By following these tips, you’ll be on solid ground to start your side hustle. We’re entrepreneurs, too, so we applaud you!
Terms of Employment: Generally, the terms of employment include how long the employee will be employed. For freelance or contract positions, this might mean for a specific amount of time or until a project is complete; for more traditional employment, this often means indefinitely or until either party terminates the employment relationship. Employee Responsibilities: One of the most varying parts of an employment contract is the section detailing employee responsibilities. This is because every job is different; therefore, the expectations for each position differ. For example, a construction contractor’s employee responsibilities aren’t the same as a salesperson’s responsibilities. Employee Benefits: Benefits can range from health and life insurance to disability pay and retirement plans. Sometimes, employment benefits include purchasing and/or owning stock in the business. Employment Absence: Most often, employment absence includes factors such as sick days or personal leave and vacation time. Dispute Resolution: Such resolutions might include methods such as mediation or arbitration to solve disputes between an employee and employer. Nondisclosure Agreements: These agreements prevent employees from sharing a company’s business secrets, such as trade information or client lists. Ownership Agreements: Simply put, an ownership agreement means anything produced by the employee while employed by the employer becomes property of the business. Assignment Clauses: Similar to ownership agreements, assignment clauses basically mean any patents obtained by the employee during his or her employment are assigned to the business. Employment Opportunity Limitations: Many employee contracts include clauses that prevent the employer from limiting the employee’s potential future job prospects should the employer terminate him or her, or should he or she decide to leave the job. Termination: Each employee contract should clearly define all possible grounds for termination.
Document Each Stage of the Termination You can justify your termination by documenting. From the moment you notice you have an issue with your employee, you will want to start documenting all communications with that employee, their work issues, and keep performance reviews in a folder. If there are any coaching and extra training sessions issued to help and keep the employee on par, you will want to document those as well – because this will show that you did what you could to help the employee stay. Communicate Concerns Clearly Wrongful termination lawsuits typically happen because an employee did not realize there was anything wrong; therefore, they are terminated without reason. If an employee is in danger of losing his or her job, do not try to sugar coat it or avoid telling the employee. Instead, let them know what issues you have and possibly ways to correct it – giving the employee a chance to redeem themselves. Also, by discussing specific issues you have with them, you have more proof when it comes to justifying a termination if one occurs later on. No matter what, make sure you inform the employee immediately after an issue arises so that they have adequate time to correct it. Take Steps to Protect Your Business Once you have done everything you can to help that employee, and they have not improved within a fair timeframe, it may be time to terminate the employee. Before you actually start the termination process, make sure your reasons for the termination do not violate state or federal law. If you are unsure, consult an attorney. Some reasons that can violate the law include pregnancy, gender, age, or other types of discrimination. Make sure that you gather all documentation that supports or justifies your reasons for the termination. You will want to sit down with the employee with all of your documentation and discuss why you are letting them go. Show them performance reviews, the opportunities to improve that you have provided, and how they have not improved since then. You will want to give all of the details and not be ambiguous about the fine points. The broader you are, the more confusion that the employee may have – and the higher chance for a wrongful termination. Do Not Argue If the employee pleads or argues with you, do not engage. Simply state your facts and terminate the conversation. It is best that you have a witness there – but not a peer employee. You should have a member from your human resources department or another manager present for the termination. Having an employee’s peer present could be a violation of their rights. Cut all employment ties right away. That includes gathering any information, badges or parking passes the employee may have. If the employee has a login code, you will want to have your IT department change that or deactivate it immediately so that they no longer have access. Allow the employee to clear out their personal belongings, while supervised, and escort them to the doors. By preparing for the termination ahead of time, you can reduce the likelihood an employee will be able to sue. While no one can predict the behavior of a terminated employee, having a employment law attorney present can help your termination.
Over a day-long session in mid-January and again in February, labor and employment law specialist Tim Bowles will cover the structure and span of current workplace law from a management perspective, including the significant changes for 2020 in California. He will include: • Workplace discrimination, harassment and retaliation protections • Independent contractor vs employee status (including the effects of “Assembly Bill 5”) • Whistleblower protections and policies • Why HR communication and documentation are vital • Hiring applications, interviews and testing • Minimum wage, overtime and overtime exemptions • Staff training, with sample policies and how to implement them • Workplace drug use and testing (including the effect of marijuana decriminalization) • Worker privacy and free speech issues • Sick leave polices • Discipline and termination basics The seminar is a must for all business owners, executives and personnel management staff, setting the foundation for confident hiring and stable business expansion in the new year and beyond. Emphasis is on practical application. Attendees are encouraged to ask questions on their particular legal challenges or concerns throughout the session. Our updated model employee handbook policy and forms will be available in conjunction with this seminar. These sessions are always well-attended, informative and, according to some, fun: “So helpful and thorough. Very entertaining and educational. I’m not sure how Timothy managed to make legal fun, but he did!” “Really great seminar. Mr. Bowles really breaks down these labor laws simply making it easy for the average employer to confidently grasp the main understanding of basic labor regulations. I found this very informative. I very much appreciated my experience and highly recommend.” “The seminar was very informative. I was able to get all of my employment law questions answered and even learned new things I didn’t know I needed to know. Tim is a great speaker and I look forward to hearing him again.” Where: TBD When: Friday, January 24 or Friday, February 28, 2020, 9:30 a.m. – 4:30 p.m. Pricing: $200 first company attendee; $175 for each additional person attending. Lunch and snacks will be served. To reserve your spot, please contact us at (626) 583-6600 or [email protected] Seating is limited.
Why then would an employer offer to pay severance when it does not have to? Companies often say that severance is being offered to assist employees with their transition out of the company and to help them while they look for another job. That may be true, but it is not why most companies offer severance. To receive severance payments, you will likely be asked to sign a severance agreement, which is usually a long, complicated contract containing several terms that are beneficial only to the employer. Severance packages generally boil down to the employer paying you in exchange for two things: 1. Your agreement to not sue the company for any employment-related legal claims you may have, such as workplace discrimination; and 2. Your agreement to restrictive covenants, such as non-competition, non-solicitation and confidentiality or non-disclosure provisions that may limit your future employment. Before signing any severance agreement, you should take time to understand its provisions. Also, make sure you understand what the agreement says about the number of days you have to sign it, and when that time period starts. While the amount of time an employer will give you may vary, employers should give you an opportunity to consult with an attorney first. Agreements Not to Sue Nearly all severance agreements will require you to release – or promise not to sue – the employer for employment-related claims, whether or not they are claims you know about at the time you sign the agreement. The agreement likely will list several sources of such claims, including, for example, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination Employment Act, the Family and Medical Leave Act, and the Employee Retirement Income Security Act, just to name a few. These laws protect employees from discrimination and retaliation by employers based on race, ethnicity, gender, religion, disability, and age or protect employees’ rights to medical leave and certain retirement and health insurance benefits. An employer generally will require you to waive claims under these laws before paying severance so that it can achieve finality in its employment relationship with you. But, to hold you to the waiver, the employer must give you what is called “consideration” in exchange for the waiver. Typically, the “consideration” is in the form of a severance payment. It is important, and in some instances required by statute, for the employer to give you time to evaluate the waivers. You should consider speaking to an attorney to discover whether you have a real claim under any of these laws before waiving your right to sue for any claims you may have against your employer. Some claims, like claims for unpaid wages and overtime under the Fair Labor Standards Act (FLSA) or for unemployment compensation, cannot be waived at all or can only be waived in limited circumstances. Restrictive Covenants and Confidentiality Provisions Your employer will want to protect its competitive advantage by having you agree to restrictions on your future employment – particularly if you had access to your employer’s trade secrets or other confidential information. These restrictions often come in the form of non-competition, non-solicitation, and confidentiality or non-disclosure provisions. A non-competition provision is a promise by an employee not to compete with his or her employer for a specified period of time, in a particular place, or in a particular way. A non-competition agreement may severely limit your ability to work in the industry for broad geographical areas or for long periods of time. These provisions might make it difficult to obtain another job in your field. You should make certain you understand the consequences of signing an agreement containing a non-competition clause before you sign it. Non-solicitation provisions usually prevent the employee from soliciting either (1) other employees and/or (2) customers, clients, or vendors of the employer. These types of provisions may prevent you, for example, from selling to your current customers, even if you brought them to your employer. Confidentiality or non-disclosure provisions typically require the employee to not use or disclose any of the employer’s trade secrets or confidential business information. The agreement the employer wants you to sign may have a very broad definition of the information the employer considers to be protected. You should make sure you understand the scope of the information you are being asked to keep secret before you sign the agreement. Restrictive covenants and confidentiality agreements may also be found in contracts you signed when you began working for your employer or at some other time during your employment. These agreements should be reviewed together with the severance agreement so you get a complete picture of your future employment restrictions and options. Regardless of whether they are contained in the severance package or in a prior agreement, non-competition and non-solicitation agreements generally must be limited in time, in subject matter, in scope, and geographically. You May Need an Attorney to Understand Your Severance Agreement A severance attorney can explain the provisions in your severance agreement and let you know whether they are reasonable or unreasonable for your circumstances, and can advise you on how to comply with them to avoid a lawsuit by your employer.
Employee termination is always a difficult process, but knowing what to expect can help you protect your rights and come out of the situation on your feet.
Learn what topics an employee termination letter will cover, and find out when your employer might be legally required to provide you with a termination letter.