Fired California Aircraft Salesman Gets Trial


By Joanne Deschenaux September 28, 2018

A salesman who was allegedly fired for complaining that he had not received all of his earned commissions could bring wrongful termination and retaliation claims to trial, a federal court in California ruled.

The plaintiff worked for a company that sold aircraft, and his job was to sell one particular type of small engine plane in Southern California, Las Vegas and Hawaii. His employment was at will, meaning that he could quit or be fired at any time, with or without cause or notice, and for any lawful reason.

The plaintiff had signed a contract guaranteeing him a percentage of each sale as a commission. The commissions were not payable until the planes were actually delivered to the buyers.

[SHRM members-only toolkit: Complying with California Wage Payment and Hours of Work Laws]

The plaintiff claimed that he was fired after repeatedly requesting payment for commissions that he had already earned. The employer filed a motion seeking to have the lawsuit dismissed before trial, but the court denied the motion, allowing all of the plaintiff's claims to proceed to trial.

Wrongful Termination

The plaintiff's first cause of action was for wrongful termination. He argued that his employer fired him in violation of California's public policy requiring payment of wages. A public policy is a system of laws and other measures concerning an important topic of governmental interest, such as ensuring that employees receive prompt payment for their work.

The court noted that although it was undisputed that the plaintiff's employment was at will, an "employer's right to discharge an at-will employee is subject to limits that fundamental public policy imposes."

To be successful on a public-policy claim, the plaintiff must show that the policy addresses a fundamental right, is beneficial to the public, and is embodied in a statute or constitutional provision. There must also be a connection between the plaintiff's request for his earned wages and his termination.

California law requires that if an employer fires an employee, the employer must immediately pay the worker the unpaid wages that he earned. Furthermore, if an employer fires an employee to avoid paying him money he earned, it violates a fundamental public policy of the state, the court explained.

The court concluded that there was a dispute as to whether the company violated a state public policy by firing the plaintiff to avoid paying him what he'd earned. Therefore, the plaintiff could bring his wrongful termination claim to trial.


The plaintiff also claimed that the company violated a provision of the California Labor Code stating that employers may not fire or discriminate against an employee because the employee has "made a written or oral complaint that he or she is owed unpaid wages."

Although the company claimed that the plaintiff was fired for poor performance and not because of his complaints about unpaid commissions, the plaintiff showed the court evidence that he had a reputation for being an enthusiastic, hardworking employee who won many customer contracts. Furthermore, the plaintiff was fired just days after he complained about unpaid commissions and just days before he was owed several other commissions.

Because of this evidence, the court refused to dismiss the plaintiff's retaliation claim and ruled that this claim should also proceed to trial.

Scharber v. Cutter Holding Co., S.D. Cal., No. 3:16-cv-03045-JLS-WVG (Sept. 13, 2018).

Professional Pointer: The timing of the plaintiff's firing was a determinative factor in allowing his claims to go to trial. The plaintiff was fired shortly after complaining about money the employer allegedly owed him. As to the public-policy claim, he was fired just days before the employer was supposed to pay him other commissions.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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