Legal Question in Employment Law in California

Paid holidays, sick days and vacations.

Is it legal for an employer to chargeback a totally commissioned salesperson (full time W-2 employee) an amount amount equal to a holiday, sick day or vacation pay. This during the period when they are away from work and their sales are inactive. Example: The commission is $500, but the salesperson was on vacation for three days. The vacation pay is equal to $150. The commission is still $500., but it is reduced (by $150.) to $350 and than an added adjustment is made of $150. vacation pay, to bring the paycheck back up to $500. My thinking would be that $500. plus $150. vacation pay would bring the pay check to $650. In the company handbook it states paid holiday, sick day and vacations, but they are paying us with our own money.


Asked on 10/16/99, 2:28 am

1 Answer from Attorneys
Thomas Pavone Pavone & Cohen

Re: Paid holidays, sick days and vacations.

A totally comissioned employee generally would not receive any additional pay for a holiday or sick days because compensation is not based on days or hours worked. Thus, the employer is attempting to make part of the compensation for a work week "look like" holiday pay or sick pay, when in fact there is none. However, in the end, compensation does not change either way.

As to vacation, generally vacation pay is in addition to earned commissions. This allows an employee to go on vacation and not suffer a loss in compensation. Thus it is improper to charge vacation against EARNED commissions. If on the other hand the charge is against a DRAW, and then the sums are added back, it may be proper.

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Answered on 10/20/99, 9:31 pm


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