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Can my boss take away my commission in a sales position if I have an at will contract and put me in a tip pool ? 50% less

New York, NY |

Hello, I am working in the hospitality field. I recieved a promotion two months ago and got an hourly increase and a commission and its stated on my contract . Two weeks ago a manger pulled me to the side to tell me that was a mistake from day one and I was suppose to get tips not commissions. I asked probing questions and they then said they had to which is a lie because the person before me got commission. Plus the verbiage by the owners was always commission because I was selling. I never signed a new contract or verbally agreed. I said I would need to see my check when it arrived. When it arrived I expressed concern . I was let go yesterday. I have one more check comming . Do they have to pay me commission as based in my contract or the supposed tip pool which is less than half?

Attorney Answers 3

Posted

You should invest in a consultation with an experienced employment attorney, who will review your contract and determine whether you have a claim against your former employer for commissions and retaliation.

The information provided above is for general purposes only. It does not constitute legal advice or create an attorney-client relationship. Seek competent legal representation, because the facts of each case are different.

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James Edwin Jackson

James Edwin Jackson

Posted

I agree with Ms. Rubin. It sounds like you have a contract and it spells our the terms of your compensation, but there are other parts that may have bearing. See if you can find an attorney that will do an initial consultation for free or a nominal charge. You will get a better idea that way.

Posted

If the latest properly signed contract states that you are entitled to commissions, then your employer should pay you commissions.

I agree with the previous answer in that there are probably more issues with your situation than you suspect and a lawyer may help you to sort it out.

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Posted

I have a few thoughts. Under the law, it is not terribly important whether the $ is called "tips" or a "commission" or a "bonus" -- what matters more is what it actually IS. Then, there are different rules about how that classification affects things depending on which law you are talking about. It is hard to say based on the info you have provided, but it sounds like you MAY have a breach of contract claim, an unpaid wages (i.e. unpaid commissions) claim, a violation of tip pooling rules.... there are a bunch of different things that MAY be at issue. ALSO, it is illegal for an employer to "retaliate" against you (like firing you) for doing something that is protected by law -- like laying claim to any wages you may be lawfully entitled to. Your situation may or may not qualify for that. While I wish I could give you a black and white answer, I'd need more info to really go through a proper analysis.

This is not legal advice. Consult with a lawyer about your particular situation.

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Asker

Posted

Thank you. More information : I was a vip guestlist director at a snotty celebrity nightclub . Business has been slow but when I got my position there was an extra administration fee on the client bills which was then split amongst the host who book tables and myself because I sold tables at the door. That admin fee has since been removed and Basically my employer went to an "all tips system" and started paying us in cash however it is still recorded on the check but now everyone's check says tips not commission. What actually happened was this.... They took me out of the host tip pool which I have been in for two months and put me into a service tip pool which is split up a gazillion ways . Same percentage but totally different breakdown. I went from 150 a night in tips to about40 a night during my final two weeks. Also it turns out they had been planning to fire me the whole time. I was let go on Tuesday and they had replacement by Wednesday. I am definitely an at will employee etc . I was fired because "it wasn't working out and the wanted to go a new direction"

Penn Anderson Dodson

Penn Anderson Dodson

Posted

On the tips vs. commission question, you can look at the Dept. of Labor's fact sheet for some more info ("Service Charges: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer's gross receipts. Sums distributed to employees from service charges cannot be counted as tips received...") here: http://www.dol.gov/whd/regs/compliance/whdfs15.pdf If after reading through that fact sheet you think you may have been wronged, I encourage you to call a lawyer who specializes in this area of the law.

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