Will I be Paid My Commissions if I Resign or am Terminated from My Employment?

Commission word on a ball of hundred dollar bills earn money sales

A common question posed is: “Will I receive my commissions when I resign or am terminated from my employment?” The answer to this depends on (a) what your commission agreement states and (b) when the commission is concerned “earned.”

New York law requires that a commissioned salesperson’s pay must be in writing and signed by the employer and the salesperson. It must contain a description of how wages/ commissions / monies are calculated and considered earned; the frequency of when the salesperson will receive payment for the earned commission; the frequency of reconciliation, if applicable; and all details regarding what payments, if any, are to be made when the employment relationship ends and when the payment(s) will occur.

Upon written request of the salesperson, the employer must provide a detailed statement of earnings paid or due as well as those that remain unpaid.

When is the commission “earned”? This depends on what is written in the agreement. If the agreement is silent on this point, then it is deemed earned in accordance with past dealings between the employer and commissioned salesperson. If there are no past dealings to rely upon, then the commission is deemed earned when the salesperson produces someone ready, willing and able to enter into the contract upon the employer’s terms.

Once a commission is deemed “earned”, it is legally considered “wages” under the New York Labor Law.

All commissions that have been “earned” must be paid to an employee even if the employee has left employment. It does not matter if the employee has been terminated or resigns from employment.

If the commissions have not been earned at the time of termination or resignation, then the terms of the written agreement between the employee and employer will govern whether payment will be made and if so, when.

If you have left your employment, voluntarily or involuntarily, and believe you are owed commissions, contact Donath Law, LLC to determine your rights and options.

My Employer Scheduled an Exit Interview. What Should I Expect?

Small young businessman standing in front of the boss office door

Employees departing employment either voluntarily (i.e. resignation/ retirement) or involuntarily (i.e. termination/ forced resignation) may be asked to participate in an exit interview. Some employers try to require an exit interview prior to your departure.

So what should an employee expect to occur in this exit interview?

An exit interview is generally conducted by at least one person who acts as a human resources person for the company, but it could also be conducted by the employee’s manager, boss, supervisor or anyone charged with reviewing the employee’s departure. There may be more than one person in attendance.

Generally, the items discussed in an exit interview, include the following:

(a) Final payments to the departing employee . Specifically, when the employee will receive a final paycheck; whether it will be paid by direct deposit or in another fashion; whether the employee will still be paid commissions; what happens to the employee’s equity (vested vs. unvested); will the employer pay out accrued but unused vacation time; when will the employee’s benefits end; how are benefits rolled over; and information about applying for unemployment benefits, if applicable. Employees should also find out about the company’s process for reference checks and ask any questions about benefits and payments he/she may have. Some company’s have a list that include frequently asked questions and covers items such as 401K, life insurance, disability insurance, COBRA, etc.

(b) Return of Company property . The employee may be a provided a list of all property that must be returned including, among others, keys, ID cards, cell phones, tablets, computers, documents. The employee may be asked to sign an acknowledgement of the property to be returned or which has been returned. The employee should also request or provide a list of all of the employee’s personal items that should be returned.

(c) Review of post-employment obligations . If the employee signed any documents limiting future employment, these documents should be reinforced during this meeting. The employee should expect to receive a copy of any such documents previously signed or can request a copy of these documents so that there is clarity regarding future obligations. Examples of these documents include, without limitation, Non-Compete Agreements, Non-Solicitation Agreements; Workplace Invention Agreements; Intellectual Property Agreements; Confidentiality Agreements. Restrictions may also be found in equity agreements/plans and deferred compensation agreements/plans.

(d) Separation Agreements . Some employers will offer employees severance upon their departure and will provide the employee a document to review with an attorney and sign in exchange for payment. Some employers have severance policies that they follow and some employees have severance set forth in their employment agreements or offer letters. If not offered severance, employees may also ask whether the employer will offer severance in exchange for the employee signing a release of claims.

An exit interview is also a place for an employee to raise issues as to the reason the employee is departing. Some employees raise issues regarding workplace discrimination; retaliation; sexual harassment; failure to pay wages; impropriety in the workplace; etc. Employees may discuss the reason for their separation which may provide an employer insight into their business and may also provide insight as to whether the employee may raise employment related claims that could result in litigation. It is not unusual for the company to be documenting the employee’s response to questions posed about the workplace and whether the employee felt that he/she was treated properly. The employee may even be asked to sign a statement of what was discussed at the meeting.

In an exit interview and upon an employee’s departure, unless required by an agreement signed by the parties, the employee should not feel obligated to tell the former employer about new potential employment. There is generally no benefit for an employee to share this information with the old employer.

Starting January 1, 2018, Eligible Employees Will Receive Paid Family Leave Benefits Per the New York Paid Family Leave Benefit Law

Paid Time Off words on a clock face to illustrate employee medical, sick or family leave with pay

This law generally applies to most private employers with one or more employee.

Employees are eligible for this benefit after having worked for a Company for 26 or more consecutive weeks (six months) or if you are an employee who works less than 20 hours per week, on the 175ths day of working for the Company.

The law permits eligible employees to take job-protected paid time off to (a) bond with a child, (b) care for a close relative with a serious health condition or (c) assist family members when a loved one is deployed abroad on active military duty.

Benefits of this leave is that it is job-protected leave. Covered employees taking this leave will not lose employment benefits while taking this leave. They will continue on their health insurance benefits for the duration of the leave. Covered employees will be entitled to reinstatement to their position or a comparable position about their return from their job protected leave. Covered employees will not be retaliated for seeking a leave of absence under this law or for taking such leave.

Covered employees are able to take the leave all at once (if they meet proper certification requirements) or take intermittent leave.

The New York Paid Family Leave will phase in over a four year period. As of January 1, 2018, employees can receive up to eight (8) weeks of paid leave at 50% of the employee’s average weekly wage, capped at 50% of New York State’s Average Weekly Wage. Starting on or after January 1, 2019, eligible employees can take up to 10 weeks of paid family leave at 55% of their average salary, but capped at 55% of the state average salary. On or after January 1, 2020, eligible employees can receive up to 10 weeks of paid family leave at 60% of their average weekly salary, capped at 60% of the average state weekly salary. On or after January 1, 20121, eligible employees can receive up to 12 weeks of paid benefits at 67% percent of their salary, capped at the average state weekly salary.

For more specific information about the New York Paid Family Leave law and the payment schedule, follow this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-information-employees.

Employees are only entitled to utilize these benefits one time in a 52 week period. Eligible employees cannot use Federal FMLA and state family leave separately, but these two job protected leaves run concurrently.

These benefits are paid for from a small weekly pay deduction from the employee’s paycheck.

For more information about what you as an employer is responsible for, follow this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-information-employers

Can My Employer Access My Personal Accounts Saved on My Work Phone?

Does the Stored Communications Act Protect Me at Work?

Laws, such as the federal Stored Communications Act, prohibits, unless the employee provides consent, an employer from accessing non-public information from websites whose passwords and login information are stored on company property, including a company phone, tablet or computer. However, many employers take the position that there is no expectation of privacy on a company cell phone, tablet or computer and rely on their computer, phone and social media policies to access all information, emails, websites and an employee’s social media site.

Employees should err on the side of caution. Employees should keep their personal and work lives separated. If an employer provides an employee with a cell phone, the employee should utilize that phone for work related items only. The employee should not download any personal information or apps onto the work phone. While it may require an employee to pay for a personal cell phone, the employee should have their own personal cell phone to use for their personal email, texts, social media, etc. While it seems economical to use the company phone, the downside could be tremendous.

Don’t forget, that any texts that are not work related are generally a violation of company policy and could be grounds for termination. Employees should also err on the side of caution with any tablets, laptops or even desk tops either at the office or that the company provides to them at their homes.

Employees should presume that if they download or log into Instagram, LinkedIn, Facebook, Grindr, Pinterest, Tinder, Snapchat, Twitter, etc., their employer may have access to these sites.

While an employee may be able to raise a claim under the federal Stored Communications Act for their employer’s review of the employee’s personal social media and emails on the company phone, etc., keep in mind this would most likely occur after the employer has already accessed all of the employee’s personal and private information. Be mindful that it is better not to provide an employer access. Employees should not store personal information on their work phone, tablet or laptop and should not access any private information on any of these devices.

Social Media – Your Employer and Prospective Employers May Be Following You

Are Your Posts Harming Your Employment?

You should presume that your current employer and prospective employers are following you into every site you go into on the internet; whether it be a chat room, group, blog, networking site, Instagram, Facebook, LinkedIn, YouTube, Google+, Pinterest, Snapchat, Twitter, etc.

Many people do not realize the impact that their posts have on their future employability and employment. Specifically, a person may be denied employment because of what a prospective employer discovers on social media or an employee may be terminated due to comments and outside activities posted on public or private social media sites

Many employers have Social Media Policies setting forth what can or can’t be posted by its employees. All employees should review these policies in order to be in compliance. Failure to do so may be grounds for termination.

Employees and former employees must also be sure not to share confidential and/or propriety information and/or trade secrets on social media sites. Doing so can be grounds for termination or if already a former employee, grounds for a lawsuit.

An employer discovering an employee posing his/her involvement in illegal activity through a post on a social media site can also be grounds for termination.

Employees should assume that their employer or prospective employers are reviewing any posts that they put on social media and others posts that may be linked to them. If an employee would not say or engage in an activity in the workplace then he/she should not do so on social media.

Many employers and recruiters review social media to check out applicants. Employers look for, among others, provocative photos; bad mouthing of colleagues, former employers or friends; sharing of confidential information; misrepresentations made by the applicant on a resume or in an interview; illegal activities.

Employees should be mindful of what they are posting, their privacy settings and who they connect to in the workplace.

Comments and posts can follow employees and harm their employability.

Employers reviewing social media sites and making adverse employment decisions must be careful that doing so is not based on improper or illegal motives, as this may result in lawsuits against the company for their decision.

Effective October 31, 2017 Employers in New York City Can No Longer Ask About an Applicant’s Salary History

Effective October 31, 2017 employers in New York City are prohibited from asking applicants in an interview or on an application to provide their current or past salaries, benefits, or other compensation.

This new law applies to all employers of any size that are hiring job applicants in New York City.

Benefits and other compensation include items, including without limitation: car allowance, retirement plans, bonuses.

Employers are also prohibited from doing any investigation into the applicant’s salary history by speaking with third parties, the applicant’s current or former employer or searching public records. If an employer come by this information, the employer cannot use the information in making a decision as to hiring the applicant.

Employers cannot ask applicants about the amount of commissions earned, but can ask objective indicators of performance, like volume, value or frequency of sales.

Employers may ask about deferred compensation and/or equity the applicant may have to forego to take the position, as well as the value and structure of the deferred compensation and/or equity and may request documentation to verify the applicant’s representation and consider this information when making an offer to the applicant.

Employers can ask applicants about their compensation expectations or about other offers the applicant may currently have pending including the value of these offers

The law does not apply to applicants applying for internal transfer or promotion within their current employer.

The law does not apply to those in public sector jobs in which salary is governed by a collective bargaining agreement.

Employers are free to ask about a person’s salary history after the person has already been hired. The law only governs the hiring process and does not speak to inquiries made after a person has been hired and is working for the employer.

Employers found to be in violation of the new law may be required to pay damages and/or fines and/or may be subjected to mandatory trainings.

For more information visit the New York City Salary History Frequently Asked Questions by using the following link: www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page

The goal of the new law is to eliminate pay disparity and discrimination for women and minorities who may have been receiving lower salaries, benefits and other compensation. The new law affords an opportunity to break the cycle of inequity in the workplace by focusing on the applicant’s qualifications for the position.

Why Should I Have My Severance Package Reviewed Before Signing It?

Severance Word Cloud Concept in red caps with great terms such as pay package hr benefits and more.

Severance packages are legal documents that must be understood prior to signing and returning them to your employer even if they appear simply written. They have been carefully written by your employer to provide you with certain benefits in exchange for you giving up certain rights.

In reviewing a severance agreement, there are many items to consider. A few examples are:

(1) How long do you have to sign the agreement? This time period may be dependent upon your age and also if the separation is considered a one-off (meaning just you) or a mass layoff (multiple employees).

(2) Will the payments be made to you in lump sum or over time?

(3) Are the payments mitigated by your receipt of unemployment benefits or new employment?

(4) How long will your health benefits continue? Will the company pay for this?

(5) Will you receive your bonus or a pro-rated bonus?

(6) If you were relocated, will you be returned to your original location?

(7) Does the severance package include provisions such as a non-compete, non-solicitation, non-disclosure, confidentiality? If so, what do these mean for your future employability?

(8) Is their a mutual release of claims?

(9) Are you or have you received your 401K matching contribution from the company?

(10) Will you receive outplacement?

(11) Are you going to be paid for your accrued vacation days?

(12) Are you entitled to pay for unused sick days?

Besides the above, if you have been selected for termination and are offered a severance package, there is a key question to consider – Why was I personally selected to be fired?

Even if the company is undergoing a mass layoff, this question is still pertinent, as there may be a reason that you were selected for termination over another employee. Why? Did you report discrimination? Did you refuse to engage in impropriety? Was your selection based on an impermissible/illegal rationale?

A severance package should be reviewed even if you think you are comfortable with the offer. It is important that you understand the obligations that are required of you in exchange for the pay you are going to receive.

If you are interested in having your severance package reviewed to understand your rights and the document(s) itself, please contact our office. We understand that you must respond to a severance document in a timely fashion and are able to promptly review and respond to your concerns.

The Firm is also available to assist you in requesting and/or negotiating different terms and/or language in the severance agreement. The goal of severance is that the parties are able to part ways. The employee receives some benefits (money, benefits, etc.) while the employer receives a release of claims and possibly a non-compete and confidentiality.

Remember, signing a severance agreement may have an impact on your future and your ability to obtain future employment. It should not be taken lightly, but should be reviewed by a legal professional familiar with these documents. We have much experience in reviewing and negotiating these documents and are available to help you so that you do not have to try and maneuver this process alone.

Are the Questions I am Being Asked at an Interview Legal? Take This Quiz to Find Out

The laws about what can be asked at an interview vary in each state and under federal law. It is important to find out what can or cannot be asked during the interview process. Asking improper questions at an interview can lead to discrimination and the person not being hired for the job.

Take the following quiz to find out if you are being asked proper interview questions. Answer Yes if the below questions are proper and No if they cannot be asked at an interview.

1. Are you currently able to perform the essential duties of the job for which you are applying? (Yes/No)

2. Do you like to be called Miss or Mrs? (Yes/No)

3. At your former company, what do you consider to be your most important accomplishment? (Yes/No)

4. Are you licensed or certified for this type of work? (Yes/No)

5. Do you have your own health insurance? (Yes/No)

6. Where does your family come from? (Yes/No)

7. Why did you leave your former employer? (Yes/No)

8. How would your experience fit in with a productive environment? (Yes/No)

9. Would you be willing to relocate or travel? (Yes/No)

10. Are there personal or family situations that would impact your job performance? (Yes/No)

11. Who takes care of your children while you are working? (Yes/No)

12. Is your spouse the same gender as you? (Yes/No)

13. How did you overcome problems at your last job? (Yes/No)

14. What do you think you can offer to this role? (Yes/No)

15. Are you available to work on weekends? (Yes/No)

16. Do you have any relatives employed at the company or at a competitor? (Yes/No)

17. Have you sustained any work related injury? (Yes/No)

18. Do you read, write or speak a foreign language? (Yes/No)

19. When did you graduate from college? (Yes/No)

20. Have you ever sued or filed claims or complaints against your former employer? (Yes/No)

At times, an employer may have a legitimate business purpose to ask questions that may seem improper. What may be improper in most situations, may not always be improper. Speak with an attorney for guidance as to what interview questions are proper. To schedule a consultation, click here or email Sheree@DonathLaw.com

The answers to the above questions, based on New York and federal laws are generally as follows: (1)Yes (2) No (3) Yes (4) Yes (5) No (6) No (7) Yes (8) Yes (9) Yes (10) No (11) No (12) No (13) Yes (14) Yes (15) Yes (16) Yes, (17) No (18) No (19) No (20) No

Not Happy With Your Salary, Raise or Bonus? Find Out How to Negotiate Other Perks or Benefits From Your Current or Future Employer.

In negotiating new employment or a raise or bonus, most employees think about how much will I be paid. While all employees would like to receive a large compensation package, or a significant raise or bonus, that doesn’t always happen. The reasons vary. However, some employers who are not willing to increase your salary or give you a bonus, may be willing to offer you other perks or benefits that would be beneficial to you, your family and your life.

Here are some examples of items that employees have asked for and received or are simply offered by some employers:

· Work from home arrangements

· Flexible work hours

· Unlimited vacation

· Medical, dental and vision coverage

· 401K matching contributions

· Student loan reimbursement

· Payments for train and/or Metro-cards

· EZ-Pass reimbursement or reimbursement for tolls

· Gym membership

· Extended (paid or unpaid) maternity or paternity leave

· Life coaching services

· Laundry services

· Travel stipend or discounts

· Car service

· Passes to amusement parks

· Payment for egg freezing or IVF

· Admission to sport events

· Time off to attend school and/or tuition reimbursement

The list above is not exclusive, but a sampling of negotiation points. Many companies offer or may be willing to extend these types of benefits in an effort to attract and retain employees.

Employees should determine what benefits/perks would make them happier at the workplace so that they can request those items in their next compensation meeting.

Employees should keep in mind that there is a right way to request such benefits and that employers are more likely to offer additional benefits/perks to employees who have proven their value.

Employers offer such benefits/perks in an effort to keep its employees positive and productive and to avoid employees from being disgruntled and distracted at work.

For employees, many of the above perks, are another way to alleviate some of their daily life burdens and to increase their compensation.

NYC’s Freelance Isn’t Free Act (FIFA)

Take Action Now – Understand Your Rights and Obligations

Effective May 15, 2017 Freelance word collage with related terms like independent worker, consultant, entrepreneur, free agent, project, assignment and profession

The Freelance Isn’t Free Act (“FIFA”) goes into effect on May 15, 2017. This law provides certain rights to freelance workers in New York City and instills certain obligations on businesses.

FIFA defines a freelance worker as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation.”

FIFA requires the following:

All contracts worth $800 or more must be in writing; this includes all agreements between the contractor and the hiring party in aggregate during any 120 day period.
The written contract is to include the name and mailing address for all parties; an itemization of the services to be provided and the value of those services; the rate and method of compensation; and the date that payment is due or the mechanism by which that date will be determined. If there is no specific date for payment, the default payment is 30 days from the date that the contractor completed the work.
The hiring party must retain a copy of the contract.

FIFA also prohibits retaliation. Specifically, a hiring party cannot “penalize, threaten, or blacklist” a contractor for asserting assert their rights under this law.

Excluded from the definition of freelance worker are certain sales representatives, attorneys and licensed medical professionals.

Contractors can file complaints for non-compliance or retaliation with The NYC Department of Consumer Affairs, Office of Labor Policy & Standards or directly in court..

Failure to comply with this law, may result in significant penalties including statutory damages, double damages, injunctive relief, and attorney’s fees.

For more information visit https://www1.nyc.gov/site/dca/about/freelance-isnt-free-act.page and/or review the Protecting New York City’s Freelance Workers Flyer.