Is it legal for a former employer to not pay the past employee commission on sales ?

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Is it legal for a former employer to not pay the past employee commission on sales ?

Is it legal to not pay commission to a former
employee for sales done? Also this employee
has no signed contract with commission
details. As the employer changes the
compensation plan every 2-3 months.

Asked on March 8, 2018 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Commissions, unlike base pay (regular salary or hourly wages), are not regulated by law. Rather, they are determined solely by the commission agreement between employer and employee, even if it was only an oral (unwritten) agreement or understanding. It would be legal to pay the former employee; it would also be legal that commissions are only paid if you are still employed at the time they would be paid. Again, it depends entirely on the agreement or understanding.
If you believe that the agreement or policy or understanding in place had been that you would be paid your commissions even if you left employment, then you could sue your former employer for the money. You would sue them for "breach of contract": for violating the agreement (again, even if it was only an unwritten or oral one) under which you worked and earned the commissions. You would need to prove in court by a "preponderance of the evidence" (or that what you say is "more likely than not") the existence and terms of the commission agreement and that you did the commissionable work/made the sales.


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