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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15650
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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Hello, For the past two months, I have been working for

Customer Question

Hello,

For the past two months, I have been working for a small private Medical Device Company as a Surgical Sales Consultant. My primary functions were to provide clinical education to surgeons in my assigned geography and pursue hospital systems to purchase the equipment for use in the OR. After 2 month of exceeding sales quotas, my employer notifies me of underperformance and termination at the same time without any precedent, RIGHT before 3 major contracts are about to be signed, which would triple my commission instantly and for future years to come. My employment has been with the company on "AT WILL" basis. Is this a case a of unlawful termination even though the company "does not have to specify reason for termination"? Most importantly if I can establish that new business was conducted as a result of my direct efforts through communication (saved emails) and meetings, would that demonstrate enough of a motive to sue the company for severance and future commission, showing that the company terminated me without reasonable cause after praising my efforts, just to "skip out" on paying me large figure commission for the year?

Thank you!
Submitted: 1 year ago.
Category: Employment Law
Expert:  wallstreetfighter replied 1 year ago.

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is an unfortunate situation,

wallstreetfighter :

did you have a signed contract with the employer?

Customer:

Yes

Customer:

Hello?

wallstreetfighter :

did the contract state you can only be terminated for cause?

wallstreetfighter :

Did it outline your bonus and commissions?

wallstreetfighter :

Did the contract state you can be terminated for cause?

Customer:

The contract stated that it is termination at will and is terminable at any time with or without cause, by either employee or the company. The bonus and commissions have been outlined as well.

Customer:

States that commission will only be paid up to the day of termination.

Customer:

However is it still possible to sue the company specifically for "abusing/loop hole-ing" the contract to avoid paying just commission, by terminating an employee right before a big deal is about to be signed after the employee has orchestrated the deal himself?

wallstreetfighter :

This is a common technique, what you will need to do is have the contract reviewed by a local attorney and sue the employer for failing to pay your earned wages,

wallstreetfighter :

you would claim that the employer terminated you in order to not pay you the commissions and bonus earned, and such lawsuits in NY are common and you should pursue it if possible,

wallstreetfighter :

Typically these lawsuits would cite the NY law "for unjust enrichment and for violation of Article 6 of the New York Labor Law"

wallstreetfighter :

At this point, you should send a letter to the employer stating you will bring legal action against them for unjust enrichment and a breach of contract, and advise them if they wish to settle they can do this within the week, or you will retain an attorney to bring lawsuit.

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

If satisfied please provide us with positive feedback.

Customer:

However the deals have not been officially signed yet. Is it still pursuable even though the company may wait for things to "die down" before signing the contracts themselves, anticipating that I would pursue legal action, and then claim that no deals have been conducted while I was employed? I have specific evidence (emails) showing my sole communication with the customers who are about to sign these deals (claim to sign them) by the end of this week! Ironically the manager let me know today of "underperformance without citation"...

wallstreetfighter :

That is possible, what you may want to do is to wait till the contracts are signed,

wallstreetfighter :

or contact the customers in writing now, and have them highlight your role in them signing such agreements with the employer,

wallstreetfighter :

this way you have further evidence to do this,

wallstreetfighter :

typically an employer would not wait long to have contracts with customers signed, as they may lose them

Customer:

I will not know if/when they are signed since my access to sales tracking tools have been cut off with my termination... I will be required to send in my company equipment laptop and cell phone ASAP tomorrow.. but I am saving the communications. What if the employer backs away from a customer after my legal action notification with the specific intent of demonstrating underperformance, while sacrificing some sales but avoiding a lawsuit?

wallstreetfighter :

You will need to save these emails,

wallstreetfighter :

That would not be to there benefit, if you are an at will employee, they do not have to prove the reason for termination,

wallstreetfighter :

and you cannot sue them for a wrongful discharge unless your contract specifically states you can only be terminated for cause.

wallstreetfighter :

The issue in the lawsuit would be unpaid commissions earned, not the reason for termnation

Customer:

Right, that's what I figured and would want to file the lawsuit for unpaid commissions. However, wouldn't it be to their benefit to avoid the customer just to appear "clean" in case of the lawsuit. What if they kill the deals which otherwise would have happened? Doesn't sound like hypothetical sale would hold much water? But most importantly I will have no knowledge if the deals are signed or not. And sending a letter indicating pursuit of legal action might scare them to lay low, even if it means sacrificing the sale.

wallstreetfighter :

That is possible, however the commission owed to you would be much less than the profit they would receive from the contracts,

wallstreetfighter :

what you would want to do is send a letter now threatening legal action for the breach, and see what happens,

wallstreetfighter :

if they cancel the contracts, you could still show through bringing in the clients as witnesses to show that they were willing and ready to sign contracts with you, and they failed to pursue them

Customer:

If the clients are unwilling to publicly testify (largest hospitals in NYC)? How much of the commission would I be eligible for? 1 year, or just the initial order? How would that be determined since there is no date on the contract only a pricing reference.

wallstreetfighter :

That would be up to the Court, but typically you would be given the commission for the first year or however the contract defined it.

Customer:

Should the letter be sent by the lawyer? and will written emails from the customers indicating their intentions to sign be enough without direct testimony?

wallstreetfighter :

The emails are good, but you will need them to testify if the case goes to a trial,

wallstreetfighter :

the letter should be sent by an attorney,

Customer:

Do you personally think there is a case here? :) Won't influence my rating obviously.. just want to know if it's worth pursuing.. The amount of my annual commission from these deal would be between $60,000-100,000 dollars.. BUT is this something that is possible to win in your personal opinion?

wallstreetfighter :

It will be difficult, however with such a large potential commission it is worth the threat of a lawsuit and even possible suit to see if they will settle with you.

Customer:

What would be some of the difficulty? Seems like they have cause and I have email evidence of setting up the deals. They have NO WAY to demonstrate underperformance what-so-ever either.. What would be a reason the judgment would not be in my favour?

wallstreetfighter :

The contract has to be reviewed and the evidence must show that the termination was due to the employer not wanting to pay commissions,

wallstreetfighter :

any lawsuit is difficult, as you do not know there evidence, and the contract language may have legal terms protecting them as well.

Customer:

But wouldn't that almost be a good thing, if they deny not wanting to pay commissions, as they will likely do, since they will need to specify another reason on trial? And I was briefly told that it was underperformance however there is ONLY good review from the customers AND the company itself. This whole thing is actually completely out of the blue, since I have never been put on a performance improvement plan not given feedback other then "you are doing great, keep it up and this will put money in everyone pocket"

wallstreetfighter :

Yes, it can help you but you do have to prove it, if you can then you may have a strong case,

wallstreetfighter :

You should keep copies of the reviews as well,

wallstreetfighter :

so you can use them against the employer,

Customer:

Great!!! Well that seems to be it! I really appreciate your help. Hopefully I win it.. Is there any specific lawyer I need to look for? Anything specific I should let them know/say? And Should I say at my exit interview tomorrow that I will be pursuing legal action?

wallstreetfighter :

Since you are in NYC, I would contact the county bar association, in the city they have two the association of the city of ny and the ny county bar they will give you a list of employment attorneys you can use,

wallstreetfighter :

Yes, at the exit interview advise them you will be seeking legal counsel to explore all your legal options,

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

If satisfied please provide us with positive feedback, thank you

Customer:

Ok will do! How can I save the text in our conversation?

wallstreetfighter :

once you provide feedback, I can send this to your email, and it will be saved to your account.

wallstreetfighter :

Good luck

wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15650
Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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