Indiana courts have defined a “wage” as compensation paid on a regular basis for work performed by the employee on an ongoing basis. In general terms, compensation that is linked to the amount of work done by the employee constitutes a wage. Vacation pay constitutes deferred compensation that is earned as an employee works, so is a wage. Performance bonuses, awards, commissions, or incentive pay are wages because they are tied to an employee’s work. Bonuses that are not directly related to the time that an employee works or which are dictated by the employer’s financial success generally do not constitute a wage. Profit sharing type bonuses are generally not considered wages because they are tied to the employer’s success and not the employee’s effort. Severance pay is not typically a “wage” as it is not compensation for work performed.
Employers in Indiana are required to pay employees twice per month, if requested. Other states have different rules with regards to wage payments. Payment shall be made for all wages earned to a date not more than ten business days prior to the date of payment. In Indiana, unpaid wages or compensation for terminated employees are due and payable on the next regular payday for the pay period in which separation occurred, provided that no agreement or published policy exists to the contrary. In California, wages are due the day of termination, so make sure that you understand each state law with regards to wage payments upon termination of employment. Be aware that wage payment laws generally follow the state in which the employee lives and not the state where the organization is headquartered.
In Indiana and other states, the payment of commissions may create difficulties for employers as commissions are wages. Employers who do not have a written commission agreement with their employees or who have a poorly drafted policy may find it to be very costly. When an employer fails to make timely and proper payment of wages of any kind, the employer may face having to pay liquidated damages up to two times the wages that the employee was owed, costs incurred by the employee to recover wages, reasonable attorney’s fees, and interest. As a general rule, an employee becomes entitled to a commission when an order is accepted by the employer, even when the employee is terminated prior to payment. The general rule may be altered by a written agreement by the parties or by the conduct of the parties which clearly defines a different event at which time commissions are earned, e.g. employer receives full payment, product or service delivery, etc.
A terminated employee is not owed commissions for purchase orders received after separation. However, earned commissions must be paid upon termination of employment. Employers should be aware of contracts that they may have with a client as commissions may continue long after an employee is terminated from employment or for the life of the deal. Again, employers should make sure that they understand the wage payment laws for the states in which their employees live and work.
It is imperative that all commission, incentive and bonus plans be put in writing no matter what state the employee lives or where the employer is headquartered. A properly worded plan or policy may save an employer money in the long run. Remember that not having a well written plan may require the employer to pay out wages when earned. So, employers need to make sure that they include information in their written plans such as:
- how commissions, incentives or bonuses will be calculated,
- which sales either by territory or customer will be awarded to the employee,
- what happens if there is a split commission, incentive or bonus situation,
- what happens if a client fails to make a payment on a sale,
- what happens in a return or credit situation,
- what goal(s) must be attained in order to receive an incentive,
- what date an employee should be employed through in order to get the wage.
Making sure that the written plan is simple and easy to understand is critical to its success. Also, making sure that the employees understand the rules of the game up front is critical, as it will help to limit the employer’s liability in the long run.
For additional information on what constitutes a wage in your state, or if your organization needs assistance with writing a formal commission, incentive or bonus plan, please contact us at www.newfocushr.com.
Written by: Kristen Deutsch, M.B.A., CCP
President
Revised 09/13/2018
