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  1. #1
    Join Date
    Feb 2012
    Location
    CA
    Posts
    7

    Default Misclassified, Commissions Held, Waiver Required, Underpayment

    My question involves independent contractors in the state of: California

    I was an Independent Contractor for a home improvement company. (I resigned in what I thought a very amicable way on 12-1-11.)

    1. I am fairly sure that I would win a suit that I am misclassified. However, other independent contractors (the other sales staff) are happy as Independent Contractors and would prefer I not rock that boat, especially since I no longer work there.
    2. The employer held ALL commissions (close to $10k) that were payable to me. (They even held the check that was already issued for me on 12-2-11!)
    3. Now they want to "settle" for an amount that is substantially less than what is owed to me.

    It has been almost 3 months and I am hurtin' for cash. The employer is demanding that I sign a waiver stating that it is final payment of wages and I won't bring any suit against them in the future. I could really use the check they want to give me but don't want to sign away my rights. The only way I will recover any amounts is by going forward with the misclassification suit.

    My questions is if I accept a partial payment, sign the waiver does that mean I cannot file a misclassification suit?

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Misclassified, Commissions Held, Waiver Required, Underpayment

    If you believe you were misclassified, you can make a wage claim with the state or report the misclassification to the IRS, neither of which constitutes filing a lawsuit.

    As I cannot see the proposed waiver, I cannot tell you what rights you will be waiving if you sign it.

  3. #3
    Join Date
    Feb 2012
    Location
    CA
    Posts
    7

    Default Re: Misclassified, Commissions Held, Waiver Required, Underpayment

    Please correct me if I am wrong, as I could really use the help. I am meeting with my previous employer tomorrow to go over this "final payment...."

    I would like to remain as an Independent Contractor for several reasons one being I do not want to end up owing back taxes including penalties for 2010 and 2011. I received a refund last year even though I was an Independent Contractor and expect to be very close to "even" on my taxes again this year. While I think I have a case for misclassification, I do also thing my previous employer could make a case for Independent Contractor status. All I really want is to be paid what I earned in commissions (I am 100% commissioned outside sales). I would like to go the route of misclassification as a last resort as it doesn't seem to accomplish anything positive at this point.

    As an Independent Contractor I read that even if I sign a "Separation Agreement/Waiver" that it is unenforceable unless the employer gives me some type of "consideration" (additional pay) in exchange for me signing away whatever rights are in the waiver. Please correct if I am wrong.... I can take the check offered to me tomorrow provided it is the exact amount, or less than the invoice I submitted as the amount owed to me. The Separation Waiver will be unenforceable and I can still pursue a claim (in Small Claims Court) for the remainder owed to me.

    Even more interesting this whole experience caused me to carefully look back at all pay stubs for commissions since April 2010. I am such an idiot because they were deducting random amounts from almost EVERY job/sale I submitted. I was supposed to receive a POST MEASURE COMMISSION to sign if there were changes in my commission, instead they just took whatever they felt like out of my pay. I assume I can total those deductions up and place them on an invoice, requesting I be paid for those as well as the commission currently outstanding? After all I never signed anything stating otherwise. I have a copy of the POST MEASURE COMMISSION form they were supposed to give me if there were changes. These deductions total close to $6,000!

    Do I need to present that invoice prior to the employer presenting their offer, or should I wait until after depositing whatever ridiculous amount they plan on trying to get me to "settle" for? I am just very broke and without them paying me something I will be evicted from my apartment. It is my understanding if I counter their offer and they don't accept it, then they can completely withdraw their offer to pay me anything.

    My plan for tomorrow is simple: accept the check they offer me as long as it is less than the amount I have already requested and as long as they do not offer to pay me any "consideration" for me signing the waiver; cross off any "Final Payment" memo on the check; cash check; pay my rent!; mail new invoice and demand for payment for commissions still not paid plus the ones wrongfully deducted; wait 7 days send another demand letter; wait 14 days final FINAL DEMAND; wait 7 days File in Small Claims court.....

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