Can my employer withhold my commission for the final month that I worked there?

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Can my employer withhold my commission for the final month that I worked there?

I have worked at this company for 3 years, through March and resigned at the start of April. I received my final salary paycheck, but that did not include my bonus commission for the final month that I worked March. Bonuses are based on total office commission, and all employees receive a bonus every month.

I reached out to my employer, who stated that I would receive my portion of the commission for that month once the numbers were in. Them 2 months later, the employer is now stating that they will not be paying that final bonus commission. I spoke with a current employee and was told all received their March bonuses. I reached out to our HR company who is unable to assist in this matter. I plan to ask them to meet with a mediator but do I have a legal claim to take this employer to small claims court for this bonus?

Asked on June 11, 2018 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Based on what you write, you appear to have a viable legal claim for the bonus. Bonuses or commissions are governed by the agreement or understanding between the employer and employee. Even if there is no explicit written agreement, there is at least an oral (unwritten) or implicit (understood; e.g. based on what you and they have demonstrably done or how you have acted) agreement. They have to pay as per that agreement. While it would be legal to have an agreement that a bonus or agreement is not paid if the employee leaves employment, there has to be an understanding to that effect. You, however, do not describe such an understanding; you describe a scenario where you had no reason to not believe you would not be paid your final commission and where other employees received their commissions for the same month. Under these facts, you have a reasonable chance of convincing a court that the understanding or agreement under which you did the work was that you would receive payment for your final month; and if you convince the court of that, the court can order that the payment be made to you.


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