Earn a Commission and Not Paid in Full or Discharged Before It’s Paid? You May Have Strong Legal Rights

Sometimes, in order to save money, an employer will try to shortchange a commissioned employee and pay less than the full commissions earned per the parties’ arrangements. Worse, some employers will fire a commissioned employee after the employee earns a commission but before the commission is paid. This is more likely to occur when the commission at issue is large, and the employer is focused on short-term thinking, i.e. perceived cost-savings of not paying the full big commission (while disregarding the big-picture problem of firing an employee capable of making even more big sales).

Some employers who do this, knowing there could be legal problems, present the shortchanged employee with a contract and/or severance agreement in the case of a discharged employee. Typically, the contract or severance agreement seeks to get the employee to accept a much lesser payment than the full value of the commission and/or other income lost as a result of the discharge.

If you have been shorted on a commission and/or fired by an employer looking to avoid paying you your full commission, please know you may have strong legal rights. It is important to examine your potential rights before you sign a severance agreement, as most severance agreements will waive potential legal claims.

What legal rights might you you have?  I represent workers across the U.S. with unpaid wage claims, and there can be quite strong claims, depending on the State, circumstances and commission arrangement or contract. In Wisconsin, for example, there are a number of legal claims that potentially provide strong legal rights to someone who has not been paid earned commissions.  These claims may include breach of contract claims, wage claims under Chapter 109 of the Wisconsin Statutes, equitable claims, or other important case-law rights (e.g. Phillips v. US Bank) that hold companies responsible for discharging commissioned employees or otherwise trying to reduce their commissions.

If you suspect you may have legal rights, you should consider discussing the matter with an attorney before taking action on your own. Some attorneys, including myself, offer free consultations to evaluate commissioned employees’ situations and determine if there are legal options and/or negotiation leverage worth exploring.

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Right to a Written Decision for Dept. of Labor H-1B Wage Complaint

**This post was cross-posted at my other blog www.h1blegalrights.com.

If you’re an H-1B worker and filed a wage complaint with the U.S. Department of Labor (DOL), you have a right to receive a written decision from DOL. DOL’s written decision must state important information, including: (1) if you are owed wages or not; (2) the reasons for the decision; and (3) your rights to appeal the decision, if you feel it is wrong, and the procedure and deadline to appeal it.

The attorney-authors of this blog have had some H-1B workers/ clients tell us that DOL did not issue them a written decision for their wage complaint. In some instances, the DOL investigator only told the H-1B worker the decision over the phone, did not give much detail about the reason behind the decision, and did not describe appeal rights or procedures.

Please know that you do have rights. If DOL is not allowing you to pursue those rights, you may need to tell DOL what they are required to do under the laws and regulations.

Specifically, the H-1B wage complaint regulation at 20 CFR 655.815 describes what a DOL investigator must do after investigating your H-1B wage complaint. In particular, this regulation says DOL must:

1. Mail a written decision (called a “determination) to you, the H-1B employer, and certain other people involved in the case.

2. This written determination must state DOL’s decision about your case and the reason for the decision. If DOL determines the employer has violated the laws or regulations, the decision must describe the remedies, such as back wages owed to you.

3. The determination must also explain appeal rights, how to file an appeal and the filing deadline.

If the DOL investigator has made a decision in your case, but has not given you anything in writing, you can write or email the investigator and mention the above obligations. That is, you can mention that 20 CFR 655.815 requires DOL to provide you with a written decision and notification about your appeal rights.

Please note that the appeal filing deadline is extremely short. So it may be necessary to follow up with DOL as soon as possible, in writing or an email, and seek a prompt written determination. It is important to get clarity, as soon as possible, about an appeal deadline and procedures. If an appeal is not timely filed, you may forever lose your legal rights to appeal.

If you have not received a written determination from DOL and are unable to address your concerns on your own, you could consider consulting with an experienced attorney to determine your options for proceeding with your case and protecting your legal rights.

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Age Discrimination Class Action Lawsuit Filed Against Google

A sixty-four year old worker represented by Kotchen & Low, DVG Law Partner and VK Vandaveer PLLC has filed a federal class action lawsuit against Google, Inc. The lawsuit was filed on behalf of a proposed class of workers age 40 and older whom Google did not hire in alleged violation of Federal and California age discrimination laws. According to the Complaint, as a result of Google’s hiring practices and discrimination, the median age of Google’s workforce is 29 years old.

The attorney-author of this article, Michael Brown of DVG Law Partner, is among the attorneys representing the workers who filed the lawsuit, along with attorneys Daniel Kotchen, Daniel Low and Michael von Klemperer of Kotchen & Low LLP and Vonda K. Vandaveer of V.K. Vandaveer, PLLC.

Please contact attorney Michael Brown at (920) 858-2265 or mbrown@dvglawpartner.com if you have any information or questions relating to the case.

Scroll or click the link below to review the Complaint, which details the case’s allegations that Google discriminated against job applicants age 40 and older in violation of age discrimination laws:

The lawsuit has been discussed in these news sources: ComputerworldHR GrapevineLaw360The Mercury News [SiliconBeat]Slashdot, and The Wall Street Journal.

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Class Action Lawsuit Filed Against Tata Consultancy Services, Alleging Discrimination Against U.S. Workers

The attorney-author of this article, Michael Brown of DVG Law Partner LLC, and co-counsel filed a federal class action lawsuit against Tata Consultancy Services, Ltd. (“Tata”). The lawsuit was filed on behalf of a proposed class of non-South Asian individuals who Tata did not hire and/or who faced an adverse employment action once hired by Tata (e.g., termination, demotion, etc.). The lawsuit alleges Tata discriminates against individuals who are not South Asian (or of Indian, Nepalese, or Bangledeshi national origin) in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866. According to the Complaint, as a result of Tata’s discrimination, its United States-based workforce is approximately 95% South Asian, primarily Indian.

The attorney-author Michael Brown is among the attorneys representing the workers who filed the lawsuit, along with attorneys Daniel Kotchen, Daniel Low and Michael von Klemperer of Kotchen & Low LLP and Vonda K. Vandaveer of V.K. Vandaveer, PLLC.

Please contact attorney Michael Brown at (920) 858-2265 or mbrown@dvglawpartner.com if you have any information or questions relating to the case.

Below, you can review the Complaint, which details the case’s allegations that Tata discriminated against non-South Asians in violation of discrimination law:

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Determining Severance Leverage: Five Questions You’d Need Answered (But Couldn’t Answer Yourself)

If you have been presented with a severance agreement, you may have leverage to negotiate a better agreement and higher payment.  However, most workers who have such potential leverage do not capitalize from it.

Why not?  The reasons are many.

Most workers simply fail to recognize their best potential legal rights, claims and leverage. Workers lack the expertise needed to diagnose legal rights, a task best left to an employee rights attorney who has the experience and skill set for such an evaluation. Many, like me, have dealt with thousands of severance, litigation and settlement scenarios. Believe it or not, we’ve learned a lot from those experiences, not to mention the years of education from sources that are much more comprehensive and detailed than the incomplete and scattershot summaries that can be self-perused on the internet.

Unfortunately, many workers who fail to recognize their best legal rights also believe they can self-diagnose their legal rights and severance leverage. Worse, they almost always misdiagnose their rights and leverage. Worse yet, they often reference their misdiagnosed legal rights to the employer, and often move negotiations backward as a result.  Employers usually do not make the mistake of self-diagnosis, and usually consult with an attorney before making employment-law related decisions.

It is easy for workers– especially professional and managerial types who are generally good problem-solvers– to think they can effectively diagnose their potential legal rights and severance leverage.

Maybe you think you can. After all, you know the facts of what happened to you. You can read. You understand the information on EEOC’s website or on this blog or other resources that talk about legal rights.  You can (you may think) take your facts, apply your knowledge of the law from the resources you read, and (here’s where things usually get way off-track) put it all together with a valid legal diagnosis and negotiation strategy.

Before you head off on the route of legal self-diagnosis and severance negotiation– the route of effective negotiation, that is– you’ll need answers to the following five questions.

(1) What are all of your potential legal claims?

(2) What range of results, i.e. specific monetary and non-monetary results, is theoretically possible for each potential claim?

(3) What realistic range of results is likely for each potential claim, based on real-world chances of success for those claims and real-world behavior of judges and others potentially involved in the processes at hand?

(4) Why should your opposing employer take you seriously if you mention potential employment law rights or litigation but you are not represented by a employment litigation attorney?

(5) Is the final offer you’re considering a good one, in light of the factors above?

These are questions that could be answered, and answered well, by a competent employee rights attorney. I have dealt with thousands of workers– many, I freely admit, much smarter than myself– but have never met one who could answer all the important questions above. Or even the majority of them, for that matter. That is because the answers depend on years of legal research and experiences that a non-lawyer simply doesn’t have.

If you want an employee rights attorney to answer the questions above for you, before any negotiation of your severance occurs, many of us are willing to have a free initial consultation to discuss such answers. A free consult is not bad. Especially as compared to the costs and lost opportunities that self-help often brings.

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Dangers of Bad Message-Board Advice to “Go File a Legal Complaint With ______”

Internet message boards about legal issues can be helpful for (1) general educational information; (2) looking for attorneys who seem to know what they’re talking about, so you can contact one; and (3) familiarizing yourself with issues that you could raise with an attorney when discussing potential legal rights. But message boards are usually terrible places to get ADVICE to ACT upon.

One common example of terrible message-board “advice”: the adviser who reads your question and replies you should “Go file a legal complaint with [name of govt. agency, etc.].”  Often, such advice comes from non-attorneys.  Sometimes, even attorneys will make this horrific and flip message-board statement to “Go file a complaint…”: when an attorney does this, it’s almost always someone who doesn’t practice in the area of law they are talking about.

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Wisconsin Bar Article References this Blog, Author

The Wisconsin Bar posted an article about legal blogging, and the article referenced this blog and me (Michael Brown, the attorney-author).  While the article’s audience is attorneys, it is good for you blog readers– non-attorneys and attorneys alike– to consider the purposes of legal blogs like this one.

Attorney-authors such as myself are motivated to blog, at least in part, to market ourselves and gain clients.  That’s the “selfish” motive I’m quoted about in the article.  I also speak about an unselfish motive: trying to help people who are unlikely to ever become clients.  Many issues I write about are for purposes of general information, and are not geared to any particular situation where a reader would be inclined to contact me or sign me up as an attorney.  Examples of this include recent articles about how a good case is like a three-legged stool, and about a study of employment discrimination settlement values.  These type of general eduction articles are not going to cause people to rush and sign me up, and that’s not the intent. There are some things that I just think are helpful to know, so I throw it out there, hoping it’s of some use, somewhere.

And of course, I write about situations where I am hoping people DO contact me with client inquiries.

In those situations, I do my best to approach client matters as win-win scenarios.  If I’m retained on contingency basis, I am paid when my client is paid more (win-win).  If another client pays me an out-of-pocket fee, I want that client to wind up with a greater financial outcome than what’s paid.  My clients are usually successful in those regards.  So hopefully, the “selfish” marketing aspect of blogging is bettered by the fact that win-win representation is the goal.

Which brings to mind a few parting thoughts.  You should always consider– and ask a potential attorney before hiring him or her, if you don’t know the answers–  these questions: (1) What does the attorney stand to gain from my matter? (2) what do I stand to gain with the attorney’s assistance?  The answers should be favorable for you as a potential client.

A final note about legal blogging– what you read is NOT legal advice! Can’t say that enough.  Blogs can be helpful in that they provide general educational information, and may make you consider issues you have not considered before.  But to get legal advice for YOUR situation and details, you would of course need to individually consult with an attorney.  And no, it does not need to be me, and of course it’s your decision in the first instance whether a given issue is important enough to you to discuss with any attorney, or to read any blog posts about.

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