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First See if Firm Mentions Accusations in Personnel File

June 02, 1996

Q: I have worked for a division of a multibillion-dollar corporation in Southern California for five years and have been in a supervisory role for one year.

Now an unsigned letter was sent to the president of the company accusing a co-worker and me of embezzlement and extortion, among other things. These allegations are totally untrue.

I believe that the company will investigate and then sweep this issue under the rug. I want the company to pursue this further. I have circumstantial evidence that points to the author of this letter.

What are my options if I do not feel that the company has investigated this sufficiently? Am I entitled to a copy of this letter (which I have seen)? Should I get a lawyer? This is very important to me. My integrity is in question here.

--K.V., Acton

A: Your response should depend on whether the company makes any mention of the allegation in your personnel records. You have a right under California law to see all documents that are in your personnel file, and if this letter was placed in your file, you have a right to see it. Also, if the letter (or any other mention of the accusation) is placed in your file, you have a right to expect that the company will conduct an adequate and impartial investigation. If such an investigation vindicates you, you have a right to have this information reflected in your file as well.

If the company makes no mention of this in your personnel record, however, there is not much you can do from a legal standpoint against your company. You could sue the author of the letter for defamation, but a lawsuit could be an expensive and time-consuming exercise. Unless the author of the letter has substantial assets, you are unlikely to collect much money even if you win, and such a lawsuit might do more harm than good to your reputation because it would keep the issue alive for much longer than if it were just allowed to die a quiet death.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Commission Checks Are Late

Q: For the last two years, I have been working for a small manufacturing company as a sales and marketing manager. Since then, sales have steadily increased because of the new markets I chose to explore. Last year I successfully negotiated a 20% increase in my base pay along with a higher commission rate.

Although my base pay is paid bimonthly as agreed, my commission checks are consistently late, sometimes up to two months late. I am constantly forced to remind the owner to pay me as scheduled. Because of the company's size, I have no one else to complain to.

Is there a legal time frame in which I should be issued a commission check? Under my original agreement, it was to be paid on the 20th day after the month's end. Also, is my employer required to disclose figures from which he is calculating commissions?

--R.T., Long Beach

A: California state law requires the prompt payment of wages. Even though commission compensation is to be paid "when earned," the question is the date it was earned. In the past, the employer was supposed to pay you on the 20th day after month's end. Unless the employer committed to the payment date for a defined period of time, there is nothing to prevent it from changing the payment date.

Some employers say a commission is earned once an order is submitted. Others may require receipt of the money from the customer before a commission is earned. Once the event giving you the right to the commission is fulfilled, the date of payment is the next issue. You receive the base salary bimonthly, but the commission does not necessarily have to be paid in a similar manner.

You might remind your employer, in writing, of the original commitment on when the commission is to be paid. You might also request in writing the figures for calculating the commissions.

It is illegal for an employer to retaliate against an employee for complaining about wages that are due and payable. If the employer has agreed to pay the commissions by a certain date and retaliates against you for its failure to pay, it could be liable for damages to you.

If you discover that inaccurate figures were used for your commissions, you might have a claim for fraud. Make sure you have as much documentation as possible on the commissions you are owed in case you are suddenly fired for complaining.

--Don D. Sessions

Employee rights attorney

Universal City

Vacation Pay Is Regarded as Wages

Q: I was employed in a local Orange County firm for 19 months. The company provides five days' paid vacation after the completion of one year of employment. I do not have a contract on the vacation, but a notice is posted in one of the small offices.

After my work time was cut in half recently, I gave my notice of resignation in a written letter. What are my rights for at least half a year's accrual of vacation pay? I took the five days allowed after one year of employment, but feel that the company owes me at least 2 1/2 days.

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