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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 114028
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Dear NY employment lawyer/law specialist, I was brought on

Customer Question

Dear NY employment lawyer/law specialist,
I was brought on by a cost reduction company in the telecom space to onboard accounts, get them signed onto our process, with a contract that doesn't obligate them to move forward, but will protect us if they decide to move forward (as we capture our compensation from the carrier they choose at the end of our process).
I am then to hand the account off to a team that does the analysis, presents the solutions, gets the client to choose a solution, implements that solution and we are then paid by the solution vendor chosen...only then are we paid our commission.
The process, once I get the client to sign the contract, takes 6-12 months for the Account Leader team to close (meaning the client goes through the process and actually chooses a solution - our close rate is more than 95% once I onboard them).
I chose this position because of the upside potential (3% on accounts that closed - albeit would take a while - and that would be paid for life of the client. I was promised equity as well)
I have brought in 13 accounts that total yearly revenue yielded to the company in the millions. They have decided to change the commission plan, based on the fact they don't want to pay out the money and are claiming the accounts haven't actually "closed" so they don't count towards the old commission plan structure.
What are my options in the state of NY?
Do they need to honor the fact I completed my role in excellence and comp me on the work I did prior to the accounts closing with the account leader team?
I'm working for a very sneaky boss...and I'm really upset about this.
Thank you,
Kathy
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Did you have a written contract with them for a specific period of time or are you an at will employee with them? Or are you an independent contractor?

Customer: replied 1 year ago.
I'm going to send you the contract I have.
Please note the lag time to get paid and what my role was. My boss is a "show me where I said that" kinda guy, so I tried to protect myself. My thoughts are he knew he'd be changing the plan (which is in there, but I tried to add some language around), and he wanted to use me for my contacts to get in, entice me with a good payout to do it, then change the payout....
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

In Section II of your agreement, it states the commission plan can be changed during your employment. So you are entitled to your commission payments for any work done up to the change in accordance with the current payment plan for commissions, but as you are an at will employee and they state in there that the commissions can be changed, they could change your future commission payments.

If you are not being paid for work already done in accordance with the initial commission schedule, then this is a breach of contract and you could sue them for that breach of contract. Any work you do in the future from receiving notice of the change in commission schedule would be subject to the new commission schedule though I am afraid, as the contract allowed them to change the commission schedule.

The key is when you did the work on the contracts entitling you to commission, which would determine which commission plan you are entitled to under the wording of the contract. So just because the account has not closed, if the work you did was under the old plan, you are entitled to payment under the old plan.

Your only option though is suing for breach of contract for work you did under the old commission plan to be paid in accordance with that old plan because you did that work with the understanding you would be paid that amount.

Customer: replied 1 year ago.
The key is when you did the work on the contracts entitling you to commission, which would determine which commission plan you are entitled to under the wording of the contract. So just because the account has not closed, if the work you did was under the old plan, you are entitled to payment under the old plan."Are you sure about this? They argue there is no "close" yet on these accounts I brought to them TO close. I put the "termination without cause" into the agreement, so while I may be an "at will" employee, doesn't that clause negate much of what "at will" means?
Customer: replied 1 year ago.
Thank you, ***** ***** your answers. I may have to sign off for a bit to get some work done, but I will revert.KC
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

The way that contract is written, it indicates that any work you did under the old commission plan would be paid under that plan. That is what the wording indicates.

Even though as an at will employee, you are powerless to do anything but negotiate pay with the employer. If they do not want to negotiate, then they can impose the payment plan on you for FUTURE WORK, but under at will employment if an employer wants to change pay they can do so only for future work with notice to the employee before they perform that work.