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If you are fired and you have unpaid commission can you still receive the commission or is it contingent on being employed?

Written by Mr. Roger Davie on Wednesday, 30 Nov 2016.

As an El Paso employment lawyer I see a lot of fired employees who don't necessarily want to sue for wrongful termination but want to be paid for commission that they believe they are owed but remains unpaid. The law generally says that you are owed the commission unless the commission agreement says that it is conditioned upon your being employed when paid. In other words if the agreement indicates that the commission is earned when the sale is made then you should get the commission even if it is not paid until a later date (such as the end of the year).  If the commission is paid at the discretion of your employer then you are not entitled to be paid the commission and cannot maintain a successful claim. There is also a rule that says that if you have a written agreement neither you or your employer can add oral evidence (that is oral testimony) that changes the agreement.  This is known as the parol evidence rule and it is designed to make sure that the courts give credence to the written agreement without regard to oral testimony that contradicts or adds to the agreement.  If such a rule did not exist then all written agreements would be subject to change simply by testimony of  the more believable party. This is known as the parol evidence rule and at trial when a party tries to elicit evidence from a witness that changes a written contract the judge should not allow such evidence.  Also under Texas law you have a choice on how you make a claim for wages and commissions not properly paid.  You could just sue for breach of contract, but you can also file a wage claim with the Texas Workforce Commission "TWC".  This  works similar to unemployment claims where parties can file claims without the need of lawyers (although having a lawyer certainly helps. This is usueful in smaller claims where it is difficult for an employee to find a lawyer to help them pursue their wage claim) In the case of Tex-Fin, Inc. v. Ducharne, ___ S.W.3d ___, 2016 WL 1660536 (Tex. App.—Houston [14th Dist.] 2016), the court held that the TWC violated the parol evidence rule by allowing the employer's testimony that the employee’s right to commissions was subject to a condition that his employment must continue until the end of the calendar year. This alleged condition was not included in a clear and apparently complete written agreement for commissions. The court concluded that while the contract required that commissions be calculated and paid at the end of the year, and only with respect to invoiced sales, the employee was still entitled to commissions actually earned for partial year of employment. This is a good case for employees, but as an El Paso board certified employment lawyer I can tell you that most commission agreements are discretionary or have language saying that you must be employed at the time the comission is paid to be entitled to the commission.  But it is defenitly worth seeing an employment lawyer if you have a claim or at least filing a claim with the TWC.  You can file a claim for wages with the TWC at: http://www.twc.state.tx.us/jobseekers/employee-rig...

The claim has to be made to the TWC within 180 days; if it is not then you may can still file directly with the Court if you are within limitations. Campbell v. Mabry, 457 S.W.3d 173 (Tex. App.—Houston [14th Dist.] 2015),

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