If I am a commission only sales personplus receive a W2, can my employer keep my commission checks if I call out sick for a day/week?

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If I am a commission only sales personplus receive a W2, can my employer keep my commission checks if I call out sick for a day/week?

I am a commission only sales person, I receive a W2 and work in the office. My employer has been keeping my commission checks because I have called out sick the following week for a day or two. Is this legal?

Asked on September 9, 2011 under Employment Labor Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No, it's not legal. If you did the work (or in this case, earned the commission pursuant to the usual terms and conditions under which you work and earn commissions), you must be paid. If you do something which the employer  disapproves of--e.g. calling in sick more than the employer believes appropriate, or under "suspicious" circumstances (when the employer thinks you're calling in sick to take a vacation day), etc.--the employer may take any action against you not barred by an employment contract (if any). For example, the employer could suspend or fire you, if it thinks you are abusing call off or sick days somehow. But it can't withhold pay, including commissions, which you have already earned.


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