If you have not been paid a commission for the work you do, whether you also earn a wage or not, you should first notify your HR department at the place you work or whoever is in charge of making up your pay check. It may be that there has been a simple mistake which can quickly be rectified. If HR refuses to pay your commission which you believe you should have been paid, you may have become a victim of wage theft. There are legal options for you to take, but these do depend on your employment agreement if you have one and whether the commission is only part of what your employer pays you.
Unlike other forms of wage theft, not paying a commission is not a violation of either federal or state labor laws unless you are also a waged employee and your combined wages and commission earned is less than the minimum wage. You should be paid at the very least $7.25 an hour calculating the amount of commission earned per week together with wages divided by the amount of hours you have worked.
If you are only paid commission but not wages and this is in your employment agreement, then you may be able to file acclaim against your employer to reclaim any commission owed in a small claims court.
Wage Theft is a Violation of State and Federal Labor Laws
If you haven’t been paid the minimum wage for your state or at least the federal minimum wage taking into consideration the sum total of your hourly wages plus commission, then this is wage theft and you may file a complaint with the Wages and Hours Division of the Department of Labor(DoL). The Fair Labor Standards Act (FLSA) could apply or an equivalent state labor law. The following are steps you could take if you believe you are a victim of wage theft.
Keep Track of All Communication With Your Employer
Whether you pursue your complaint with the DoL or file a claim privately against your employer you will need to prove that wage theft has occurred. This can only be proven if you can show that the discrepancy has been brought to the attention of your employer but they have not done anything about it. Make sure you keep copies of the following:
- any correspondence, such as letters or emails that you sent to HR;
- the time and date that you went to see your HR in person;
- a note of what they said to you;
- any response in writing, or by email;
- any follow up correspondence you made after the initial meeting with HR.
Gathering Evidence of Wage Theft
If you have been the victim of wage theft, i.e. your employer is supposed to pay you wages and commission, but the combined amount is less than the minimum wage for the state you work in or the federal minimum, you should file a complaint with the Wages and Hours Division of the Department of Labor, submitting your complaint form with as much evidence as possible of the complaint you have. Suitable evidence in addition to the communication you had with HR at your workplace includes:
- pay stubs showing how much you earned in wages, how much you earned in commission, if any at all, and the total hours you worked per week;
- a copy of your employment agreement.
An investigator at the DoL should contact your employer once your complaint form has been received. If your employer has violated the FLSA or equivalent state labor law, then the DoL has the authority to ensure your employer pays you what you are owed. Your employer could also be fined for the violation. Your employer cannot fire you for filing a complaint about a labor law violation.
Speak With an Attorney
If you are only paid in commission and this is specified in your employment agreement but you have not been paid your commission, this is unlikely to be resolved through the Department of Labor. You should speak with an employment attorney about your legal options to recover the commission you are owed. Your main option if the amount of commission owing is relatively small is to file a clam in the Small Claims Court. Larger amounts of commission may necessitate a lawsuit filed in a civil court. An employment attorney can help you file the lawsuit.
