To Beth 3

[Al Iglesias]

What is the name of your state? FL

Hi Beth:

Our ex-employee from Georgia who resigned August 19th as we discussed previously, stated in a letter we received today that he would send the company laptop (he his holding hostage so to speak) ASAP (whatever that means, with him that could be two months) and he expects commissions for the time he was out April, May and June 2002. He salary has already been paid through his termination date. He collected short-term disability from our company paid plan. Is he entitled to that money (commission while he didn't work)??? We had other men cover his territory during that time and gave them a small bonus for helping out. His contract doesn't state anything about not getting paid commission on disability(which he duly noted in his letter to us today), but I don't know if that matters.
Please help Thanks.

[Beth3]

The key employment law issue here is whether commissions are considered wages in your State. Since he was paid a salary, I tend to doubt it plus the commissions in question appear to have been earned by other sales rep's covering his territory while he was on leave.

Most employer's policies calcuate commissions as a percent of sales made - during the time he was on leave, he wasn't making any sales so it's hard to imagine he's due any commissions. If the commissions were for sales made prior to his leave, then I feel they should be paid even though it may rankle you to do so since the guy has turned into such a jerk.

However just to be on the safe side re: commissions while on leave, I suggest you contact FL's Department of Labor and ask whether there is any relevant State law or DOL guidelines on this.

Now that you have an ugly unanticipated situation under your belt, I suggest you amend company policy to clarify this and after talking to the DOL.

[Al Iglesias]

Dear Beth:

I called the Florida DOL (Sandy x27 Field Investigator) and she told me she doesn't think he is entitled to commission during the period of disability, however she did state that she is not an expert in contract law but gave me her best. Our actual attorney (who is a general attorney) just keeps telling me what I want to do. I don't think this is up his alley, but he told me to e-mail him back requesting the company property.

Well, I am e-mailing our ex-employee today and telling him that we will pay him on the 30th Salary for one day his final pay (1 day the 16th since he was already paid thru the 15th and he resigned on Monday the 19th) and commission earned (without specifics other than the gross sales we are computing on). I process payroll myself via Quickbooks utilizing the direct deposit feature. I will also request all company property (including the laptop) to be immediately returned and leave it at that.

I want to thank you for your prompt responses and even though we haven't personally met, I feel like I made a friend in you as well.
Beth your the best and greetings from Tampa, FL

Al Iglesias
Kreussler, Inc.
813-884-1499 (Office)

[Beth3]

Thanks, and you're very welcome.

You are right that your general business attorney is not well equipped to handle employment law issues, many of which can be very complex. It's easy to get yourself in big trouble with the State or Feds if you or your attorney apply "common sense" to certain situations or guess at what the proper resolution should be. Common sense sometimes dictates something completely contrary to what the law requires.

I suggest you ask your attorney and/or several of your fellow professionals for the name of a good employment law attorney. You will need someone you can call from time to time to get expert advice.

Best wishes. And I'm still waiting for that drink.