TX: 3 months salary then draw against commission - then fired. Unemployment?

[lee1008]

What is the name of your state (only U.S. law)? I live in TX and started a new job January 2016. For the first three months I was a "Talent Acquisition Specialist" (basically an executive recruiter in training) and was on salary. After 3 months I was given the title of "Executive Recruiter" and my compensation was changed to draw against commission. Two weeks ago the owner of this small company sent me an email (even though she was sitting in the office next door) asking me to leave "quietly without making a scene." She did not see how I would ever be in the position to repay her. (I was in the midst of a project, had presented three qualified candidates to an employer, had three qualified, vetted candidates as back-ups, and was in contact with the employer for feedback.) She said that she would give me a positive reference and would consider me working commission only for her, but that would require further discussion.

I did as she requested, returned all training materials, cell phone, etc. I asked about my last paycheck as I had worked 6 1/2 days and was told there was no last paycheck since I was on draw against commission.

I have filed for unemployment, but knowing this woman I expect her to dispute the claim. I received info from the State of TX showing that they will compute my most recent earnings ending in March, at which point I was on a salary. Federal taxes were deducted from my paychecks, even under the draw against commission plan. My previous position, which I regret leaving for this recruiter "opportunity," was a salaried position.

Does being on a draw against commission compensation plan since April 2016 exclude me for receiving unemployment benefits? This woman's company is like a revolving door, and I am positive she has had a lot of experience disputing unemployment claims.

I appreciate your feedback!

 

[adjusterjack]

Does being on a draw against commission compensation plan since April 2016 exclude me for receiving unemployment benefits?

No.

This woman's company is like a revolving door, and I am positive she has had a lot of experience disputing unemployment claims.

Then you handle the issue when it comes.

I hope you kept the email that terminated the employment.

I suggest you study everything you can find about the Texas unemployment compensation procedures and laws and be prepared if you have to go through the appeal process.

Start with the TWC website:

http://www.twc.state.tx.us/jobseekers/unemployment-benefits-services

Read the statutes:

http://law.justia.com/codes/texas/2015/labor-code/title-4/subtitle-a/

Come back to this thread if you need more help.

 

[commentator]

When you get your wage determination, it should tell you whether she was a covered unemployment tax paying employer, and if so, then being on commission doesn't exclude her from having to pay in unemployment. Or if she terminates your job without good cause (through no fault of your own) then you stand a good chance of being approved for benefits.

Just do it, just file the claim. They'll get back to you with the monetary determination very shortly. Do make the weekly certifications for benefits each week that passes since you have filed the claim. And don't worry about her appealing the unemployment. Of course she will. Employers have a perfect right to do it and it's expected.

But it's a two way street, they listen to both what the employer says and what the employee says, and assume that either or both parties may be lying about the situation. They go with the more believable story. If they left it up to employers, NOBODY would ever get to draw unemployment benefits because in the long run, it costs the employer money to hire people and then fire them randomly, running through employees on whim. To keep people from drawing unemployment based on your unemployment taxes, you must show that you had a valid MISCONDUCT work related reason to fire the person. Even if she claims lack of productivity, she must give you a chance to improve your performance, some feedback that your performance is not meeting expectations and that you need to change your behavior.

Since she gave you no reason, nothing but a vague threat that you should "leave quietly," she was obviously trying to psych you and scare you into just fading out into the night, scared she would have something to use against you. But since you know she did NOT have a valid misconduct reason to terminate you, and you always did your job to the best of your abilities, and you did not have ANY idea that your job was in jeopardy or were not given any chance to improve your performance or whatever else she says she fired you for, you have a pretty good case for being eligible for benefits.

IF, as I say, this is a covered employer. Some very small companies are not, and they'll run your unemployment records and if no wages are on file from this employer, you'd fall back to only the wages from your previous employer, and your reason for leaving them was that you voluntarily quit to take a better job.

 

[lee1008]

Rec'd "Statement of Wages" / Workforce Commission Wants Me to Call

Thank you so much for taking the time to reply with such good advice!

I did receive the "Statement of Wages," and the wages I earned from the last company when I was on salary (before the draw began), and of course wages from previous position are listed on the form.

I received a message from the Texas Workforce Commission to call them. The message said they had questions and requested a call back. I'm curious and will update the thread after I talk to them. As of yet, I have not received any unemployment benefits although I have requested them and will continue to request.

I appreciate you letting me know that I should EXPECT my previous employer to dispute my claim. I have reviewed the links you sent. Also, I not only have the termination email printed out, but I also took a photo of it.

In reviewing my initial employment paperwork from her, it states that by the "end of the first year, Recruiter should be able to solicit job orders, solicit candidates, and be able to put together and close a deal easily." I had been there for 7 months, 3 1/2 months in the role of a recruiter. I was a "Talent Acquisition Specialist" the first 3 months, and that is when I was on salary. She "promoted" me to an Executive Recruiter in April, and that is when the draw began. This company's sole focus is the rail industry, which is is a downturn right now. [In fact, people in the office had commented on how slow business had gotten.] I think she let me go because she wanted to replace me with a man who was actually working in the rail industry who wanted to be a recruiter. A great fit, but certainly no reason to deny me unemployment.

Thanks again for your time and input!

 

[commentator]

Keep making those certifications for weeks that pass and continue with your job searches to hopefully find something else soon. Even if you are approved, unemployment isn't much money and doesn't last long. Thanks for giving us the update. Best wishes.