can my employer change which accounts my commissions are paid on and back date the change and force me to pay back commission already paid to me?

UPDATED: Sep 30, 2022

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can my employer change which accounts my commissions are paid on and back date the change and force me to pay back commission already paid to me?

my employer made a decision on Wednesday that accounts that are part of a PLS
deal would not be assigned to sales reps at my position and that no commission
would be paid on them. They are now saying this goes back to Jan 1, 2016 and are
forcing me to pay back my Q1 and Q2 commissions. Can they make this type of
decision and make it retroactive?

Asked on October 22, 2016 under Employment Labor Law, Rhode Island


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Going *forward*, or prospectively (i.e. for the future), they can do this so long as there is no written commission or employment agreement to the contrary. But they may NOT make the change retroactively. At the time you made those sales, the agreement pursuant to which you were working (whether a written or oral [i.e. unwritten] agreement) was that you would be commissioned on those accounts: the law does not let one party to an agreement unilaterally change the terms of the agreement after the fact.
They cannot legally take money out of your paycheck or commissions to recapture those commissions: if they do, you can sue them to get the money back. And if they try to sue you for the money, you would have a good defense, based on the fact that you performed (e.g. sold) as per the then-in-effect agreement and accordingly, they had to pay you per the commission structure then in force.
And if they try to terminate you or otherwise take negative employment action against you for not returning the money, you could potentially sue them for wrongful termination: while generally, except when prevented by a written employment contract, employers can terminate employees for more-or-less any reason (employment at will), an employer often cannot terminate an employee for its own wrongful behavior, or for his enforcing his own legal rights.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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