It seems like common sense that employers should pay their employees what they promise them. Well, common sense does not always prevail, and especially in hard economic times, employers break their promises. And, more and more, I am seeing people who earned a bonus or a commission simply not getting paid. So, what you do you? I just tried a wage payment case to a federal jury that drove home some basic lessons that I think you should know.
First, you should know the law: South Carolina Code section 41-10-10 defines wages to include bonuses and commissions. The term wages also includes vacation and sick pay. And, section 41-10-30 provides that employees should be notified in writing at the time of hiring of the terms and conditions of employment; the law also provides than an employer must give you 7 days written notice of any reduction in pay. Section 41-10-40(d) states you must be paid at the time and place designated, and section 41-10-50 provides that when an employee is terminated, the employer must pay all wages due by the next regularly paid paycheck or within 48 hours. (See Departure Policies: What Happens if You Are Fired Before Your Bonus/Commissions Are Paid.)
So, what do you do to protect yourself? First, make sure you get the terms of your compensation in writing. If it is not in writing it does not mean you are not owed the amount promised, it just means it could be more difficult to prove. Also, if a dispute arises, assert yourself (politely) but don’t let too much time pass without inquiring and pressing. And any communication you have should either be in writing or followed up in writing.
If an employer tries to take away a promised bonus or commission, register your objection. Don’t be idle. If others are being cheated as well, join together. Go to meet with your employer as a pair or group. There are power in numbers and the National Labor Relations Act protects collective action as well as conduct or communications for the mutual aid and protection of employees.
If the dispute about payment is not resolved, you can call the South Carolina Department of Labor’s (DOL) Wage and Hour Division. The SC DOL may contact your employer and get to the bottom of it.
And, if all else fails, you should contact an employment lawyer. Because, you should be paid what you have earned. South Carolina Wage Payment Statute 41-10-80(c) provides that an employee may bring an action to receive three times the amount of unpaid wages and attorney fees. In the end, the law provides a remedy, but it is up to you to assert. And in the meantime, get as much of the dispute in writing as possible.
NOTE: Treble damages and attorney’s fees are not mandatory. In my next post, I will outline the law that governs trebling. I am waiting as we speak on a judge’s ruling to award my client treble damages and attorney fees.