O’Brien files second lawsuit against Equifax for unpaid sales commissions
On May 13, 2024, the O’Brien Law Firm filed a second lawsuit on behalf of a former sales representative for Equifax, for over $356K in unpaid commissions. After the federal government passed the Employee Retention Credit (ERC) in response to the COVID-19 pandemic, Equifax saw an opportunity to help companies audit their records to identify ERC tax credit opportunities. For a successful audit, Equifax would be entitled to a % of the tax credit earned by the client company. The Equifax sales rep who closed the auditing contract would then be entitled to a commission from the money paid by the client company to Equifax. Generally, the sales rep would only be paid the commission when the client company makes payment to Equifax.
In this second Equifax lawsuit, O’Brien’s client was laid off a few months after the IRS paused the processing of new ERC claims. O’Brien’s client had made sales that would provide her with at least $356K in commissions after payment to Equifax by the client companies. Equifax claims that she is not entitled to any pending commissions once her employment ends. However, O’Brien’s careful reading of the commission plan suggests that the commission plan does not define what happens to pending ERC commissions post-employment. And with that undefined, O’Brien contends that the default rule in Texas will control, which is that the sales rep is entitled to the commission post-employment if the sales rep was the “producing cause” of the sale. Since O’Brien’s client closed all of these audit contracts before her employment ended, she is normally entitled to the commission when the money comes in, whether employed at that time or not, as alleged in the lawsuit. However, because Equifax has already stated that it will not comply with the commission agreement and pay O’Brien’s client post-employment, O’Brien contends that the firm’s client is due all commissions immediately. Equifax has not yet answered the lawsuit but is expected to deny the allegations. That case is Cause No. 2024-30490 in Harris County state district court.