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Impact of Employee Resignation or Termination on Entitlement to Commissions Under New York Law

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Produced on September 27, 2016

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Course Information

Time 51m
Difficulty Intermediate
Topics covered in this course: Labor & Employment

Course Description

Under New York law, commissions that are ‘earned’ are considered wages that must be paid to an employee within a prescribed period of time after the employee’s resignation or termination from a company. Therefore, when a commission is earned it is critical as it determines the rights and liabilities of the commissioned salesperson and the employer.

In order to answer that question, attorneys Lynn Judell and Maxiel Gomez review relevant New York statutes, recent cases, and provide real life examples and guidance on how to handle commission claims. 

Learning Objectives:
  1. Review and discuss Section 193 of the New York Labor Law
  2. Survey recent New York Case Law
  3. Address whether entitlement to post-termination commissions depends on whether the employee was terminated “for cause”
  4. Understand how New York Courts treat and interpret written sales commission provisions in written employment agreements, including the likely outcome when an employment agreement is silent on when commissions are earned and whether forfeiture provisions are enforceable
  5. Answer the question: When it comes to sales commissions, are sales representatives who are independent contractors treated differently than employees?
  6. Identify how payment of post-termination or post resignation commissions differ from bonuses or incentive compensation

Credit Information

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Maxiel Gomez

Pashman Stein Walder Hayden P.C.

Ms. Gomez is a litigator with a focus on employment and immigration law. Ms. Gomez has extensive experience representing clients before state and federal courts, as well as state administrative agencies in employment litigation involving wage and hour disputes, harassment, discrimination, retaliation and family medical leave claims. She also assists clients in obtaining employment based residency, immigrant and non-immigrant visas. Ms. Gomez also chairs the firm’s Diversity Committee.

Prior to joining Pashman Stein in 2010, she was a labor and employment attorney at Epstein Becker & Green, PC. Following law school, Ms. Gomez clerked for the Honorable Robert A. Coogan, J.S.C. Ms. Gomez is a board member of the Rutgers School of Law – Newark Alumni Association, as well as a member of the New Jersey Hispanic Bar Association and the New Jersey Hispanic Chamber of Commerce. She is admitted to practice in New Jersey and New York, as well as the United States District Court for both the District of New Jersey and Southern District of New York and the United States Court of Appeals, Third Circuit.

Lynn Judell

Schwartz Sladkus Reich Greenberg Atlas LLP

Ms. Judell, who started her career as a litigation associate at Schulte Roth & Zabel, is counsel at Schwartz Sladkus Reich Greenberg Atlas LLP, a full-service regional firm with offices in Rhode Island, Massachusetts and New York.

Ms. Judell regularly litigates and counsels companies (public and private) on a wide range of labor and employment issues, including defense of claims alleging unlawful employment discrimination and retaliation, defense of claims for post-termination and resignation commissions, restrictive covenants and defense of wage and hour claims under the Fair Labor Standards Act and state law. She also represent companies in unemployment insurance disputes involving classification of workers as independent contractors or employees.

She often negotiates and drafts employment, consulting and separation agreements.

Ms. Judell also conducts, on behalf of companies, internal investigations of complaints by employees of race, gender and national origin discrimination, harassment.

She has handled matters in a variety of industries but focuses on financial services, solar, 3D printing, technology and consumer electronics.

Ms. Judell is admitted in the state and federal courts in California and New York and in the Second Circuit Court of Appeals. Ms. Judell received her J.D. from the University Of San Francisco School Of Law and her B.A. from Pomona College.

Ms. Judell is the author of the New York section of the Guide to Receivership and Foreclosure, published by Trigild, Inc. in October 2008. She is also Secretary of the board of the Brooklyn Bar Association Volunteer Lawyers Project, Inc. and the National Council of Jewish Women, New York Section.

She has been rated AV Preeminent for the past 18 years.


M Rogan M.

Nice overview

Lucia R.

I'm in-house counsel for an auto group in NY and this was very helpful!

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