Not sure what state you are working in, but in California the law is very clear.
Payment Of Wages Not Calcu lable U ntil After Termination.There are situations where wages (i.e., some commissions) are not calculable until after termination and, thus, are not due until that time. The employer has an obligation to pay those wages as soon as the amount is ascertainable an d failure to pay th ose wages a t that time will result in imposition of waiting time penalties. (See discussion in O .L. 1999.01.09)
4.6.1 Inability to pay is not a defense to the failure to timely pay wages under Sections 201 and 202 and does not relieve the emplo yer of penalties under Section 203. As noted above, the civil penalty assessed under Labor Code § 203 does not require that the employer intended the a ction; merely that the action occurred and it was within the employer’s
contro l.(Davis v. M orris (1940) 37 Cal.App.2d 269; 99 P.2d 345)
188.8.131.52 In addition, of course, ignorance of the law is no exc use. (Hale v. Morgan (1978) 22 Cal.3d 388, 396 ) Thus, failure to comply with the payment sections based on the fact that the employer did not know of the requirements is not an excuse.
4.6.2 The case of Diaz, et al v. Slaten (Placer Co. Sup. Crt. Appl Dept. (1997) unpub. opinion) attached, accurately reflects the DLSE policy. The opinion of the court, adopted the view of the D LSE. (See O.L. 1996.11.20)
4.7 Payment Of Wages By Insu fficient Funds Instrument. Any employee who, during the regular course of employment or upon discharge, is paid with a non-sufficient funds instrument is entitled to recover a penalty of one day’s pay for each day those wages remain unpaid . The pe nalty shall not excee d thirty days’ of wages. (Labor Code § 203.1)
4.7.1 Penalty Applies To Wages During The Course Of Employment Or At Time Of
Termination. It is important to no te that the p enalty provided in Labor C ode § 203 .1 applies to any wage s paid with a n on-sufficient funds instrument. Thus, if an employee is paid during the regular course of employment with a non-sufficient funds check the employee is entitled to recover penalties for each day the w ages rem ain unp aid up to a thirty-day maximum.
4.7.2 If the NSF check is provided for payment of final wages owed pursuant to §§ 201, 201.5, 202, or 205, the employer would be subject to penalties both for payment by NSF check un der § 203.1 and for penalties under § 203 for late payment of final wages.
4.7.3 The penalties also app ly to non-payment of “fringe benefits”. This provision has not been tested in the Califo rnia cou rts and the issue of the pre-emptive effect of ERISA may play a role in the final an alysis of any case b rought und er this section.
4.7.4 The penalty provided in Section 203.1 is not applicable if the employee recovers the service charge authorized by Section 1719 of the Civil Code.
You can go to the Department of Industrial Relations website at www.dir/ca/gov and go to the DIVISION OF LABOR STANDARDS ENFORCEMENT POLICIES AND INTERPRETATIONS MANUAL on the left sidebar.
PAY THEM THEIR COMMISSIONS!!!!!! It`s just not worth the hassle of going to the labor commissioner and then not winning your case.