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California Revises its New Commission Contract Requirement

In 2011, the California Legislature passed AB 1396 to amend Labor Code section 2751, and require that employers provide employees with a contract detailing the method by which commission, when applicable, would be computed and paid to employees.  The contract requirement is set to go into effect on January 1, 2013, and applies to in-state and out-of-state businesses that contract with employees for services within the state of California.

This requirement applies to employees if the contemplated form of compensation involves commission.  AB 1396 included exceptions from the definition of “commission,” including bonuses and profit-sharing plans, unless the compensation plans involve a fixed percentage of sales or profit as payment for work performed.

The Legislature further amended section 2751 at the end of the 2012 legislative session to include an additional exception to the definition of “commission.”  Now employers need not provide written contracts to explain a compensation system that includes payments that are temporary, variable and only increase the payment an employee may receive, as such a system is excluded from the definition of “commission.”

This amendment should remind any employer that has not yet prepared commission contracts to do so, have them reviewed and get executed copies from employees by January 1, 2013.  In addition, employers should now take the time to ensure that existing and drafted employee contracts reflect the change in the law.

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As the U.S. labor market continues to evolve over the coming decades, adapting to three major trends will be vital for employers. First, changing workforce demographics, size and focus will become a key issue in the provision of professional services – particularly as the baby boom generation continues to age. Second, increasing globalization means that national borders will become a greater challenge for companies to manage, in terms of both their immigration and international commerce requirements. Lastly, the rapid pace of technological change will continue to...