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I was laid off and my employer owes me commissions. Should I file a complaint with the State Labor Department?

New York, NY |

I worked as a recruiter and was laid off at the end of March. My employer still owes me $6,000 in unpaid commissions (wages) from Dec 2012/Jan 2013.

Clients usually pay my employer on a candidate's start date, or 30 days after a candidate's start date, or in 2 installments on those dates. My work agreement does not specify when commissions are to be paid out, but my employer has always said: "you get paid when the client pays us."

I have been requesting updates on the status of the commission payouts since mid-to-late February 2013. My employer has acknowledged my emails & calls each time with: "We are reviewing the information and will have updates for you soon." They have NOT informed me of late payments by clients, nor have they told me when to expect payment.

How should I proceed?

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Attorney answers 3

Posted

Yes, you should file a complaint with the New York State Department of Labor. Employers are required to pay commissions within five business days of employment termination or within five business days after the commission has been earned if it had not yet been earned when your employment was terminated. Based on the information you have provided, it sounds like your commissions should have been earned by now.

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.

Asker

Posted

Thanks, Alix. Very helpful and reassuring news. Could you please tell me where I can read that information? (I assume somewhere in the NYS Labor Codes). I would like to be able to cite the laws in conversation with my employer, if necessary. So far I've only found this blurb on the NYS Department of Labor website, which already indicates that my employer failed to meet the deadline: "Commission salespeople must receive wages, salary, drawing account, or commissions at such times as provided in the employment agreement, but they must be paid at least once a month and not later than the last day of the month following the month in which the money is earned. If a salesperson receives monthly payments of wages, salary, drawing account, or commissions that are substantial, additional compensation such as bonuses or "incentive" earnings may be paid at such times as agreed by the employer and salesperson."

Alix R. Rubin

Alix R. Rubin

Posted

Labor Law 191-c. You can also get double damages under this statute. Good luck!

Asker

Posted

Many thanks!

Asker

Posted

Am I legally required to inform my ex-Employer that I am considering pursuing legal action since they have not been forthcoming and they have not acted in good faith?

Alix R. Rubin

Alix R. Rubin

Posted

No, but it may push them to pay you your commissions before you actually file a complaint with DOL.

Asker

Posted

I just spoke to the NYS Dept of Labor and there seems to be a problem. Even though my company is headquartered in NY, I live in California and was working remotely. My paychecks were taxed according to NYS (I was previously a NYS resident) and my work agreement mentions jurisdiction in NYS. However, the representative at the NYS Dept of Labor told me over the phone that I have to pursue the matter with the CA Dept of Labor. Is this correct?

Alix R. Rubin

Alix R. Rubin

Posted

If you we're living in CA during this time period then CA DOL is proper and your former employer also will be penalized for not paying CA payroll taxes and required deductions. However, you also may be liable for CA income tax.

Alix R. Rubin

Alix R. Rubin

Posted

Correction: If you were living in CA...

Posted

Yes.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.

Asker

Posted

Thank you for your response. Would you suggest informing my former employer that I'm preparing to file a complaint with the Dept of Labor? (Just in case they decide to nip the situation in the bud and pay me ASAP) Also, several other posters suggested proceeding with private counsel. I had a consultation with one attorney who advised me that the amount I'm owed is not a lot for litigation purposes, and that the costs of pursuing the matter with a private attorney would exceed what I'd recover in the end. Thoughts?

Asker

Posted

I just spoke to the NYS Dept of Labor and there seems to be a problem. Even though my company is headquartered in NY, I live in California and was working remotely. My paychecks were taxed according to NYS (I was previously a NYS resident) and my work agreement mentions jurisdiction in NYS. However, the representative at the NYS Dept of Labor told me over the phone that I have to pursue the matter with the CA Dept of Labor. Is this correct?

Posted

I would hire a private attorney. The Labor Law provides for penalties as well as attorneys fees to be awarded so your employer will have a strong incentive to settle the case quickly. Best of luck!

Ryan Finn
Rfinn@hackermurphy.com
Serving clients throughout New York
Free initial consultations

PLEASE READ THIS DISCLAIMER * I very much like to offer my advice and guidance to those in need. It is why I became a lawyer. However, please note that I have not been engaged to be your lawyer so my advice is general in nature. Certainly, if you would like, please feel free to email or call me to further discuss the particulars of your situation (as many times it is not a good idea to provide a lot of information about your case on a public forum). * Hacker Murphy, LLP * 518.213.0115 * Rfinn@hackermurphy.com * http://www.hackermurphy.com/Attorneys/Ryan-M-Finn.shtml * Hacker Murphy serves clients throughout New York State (including New York City and Long Island). *

Asker

Posted

Thank you for your response. I had a consultation with one attorney who advised me that the amount I'm owed is not a lot for litigation purposes, and that the costs of pursuing the matter with a private attorney exceed what I'd recover in the end. Thoughts?

Ryan M. Finn

Ryan M. Finn

Posted

Well, I cannot speak for other attorneys but certainly I do not agree. The Labor Law provides for statutory penalties and attorneys fees to be provided by the Employer so I would think most attorneys would take the case on a contingency, as I do on such claims.

Asker

Posted

I just spoke to the NYS Dept of Labor and there seems to be a problem. Even though my company is headquartered in NY, I live in California and was working remotely. My paychecks were taxed according to NYS (I was previously a NYS resident) and my work agreement mentions jurisdiction in NYS. However, the representative at the NYS Dept of Labor told me over the phone that I have to pursue the matter with the CA Dept of Labor. Is this correct?

Ryan M. Finn

Ryan M. Finn

Posted

The Department of Labor may take that position but if you hire a private attorney there is certianly jurisdiction in NY and the case can certainly be brought here.

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