Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing and development.

Still, we, here at Miletti Law®, feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to creating authoritative, trustworthy, & distinctive content. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, we are thrilled to continue creating content-filled videos that cover diverse areas of Labor Law to educate and deliver in a sense that only Miletti Law® can. In this regard, this blog introduces you to our video titled “Final Pay, Commissions & Separation Notice in NYC!”

Most of our clients here at Miletti Law® are employers from diverse fields and sectors of the economy. Most employers have handbooks that act as vital information and communication resources for both employers and employees. Further, while they provide guidance on the “dos” and “don’ts,” most employee handbooks contain some sort of code of conduct that dictates how employees should conduct themselves in the workplace. In our blog titled “12 Canons of Corporate Conduct Made Easy for Employees: Part 1,” published on August 2, 2021, and accessible at https://milettilaw.com/blog/f/12-canons-of-corporate-conduct-made-easy-for-employees-part-1, we mentioned that an employee handbook acts as a rebuttable presumption through which companies may avoid some liability with their employees. This is because a handbook is perceived as a presumption serving to protect the employer. Feel welcome to hit the link and read more about the same.

If you happen to live in progressive cities such as New York (NY), California, or Florida, you may be aware of the frequent employment and labor law changes. These changes happen to take place every year and on basically many areas and issues related to employment law including, but not limited to wages, employee benefits, employment discrimination issues, family and medical leave, and immigration, among others. As part of their diligence, employers have an obligation to ensure that employee handbooks are updated according to changes in labor law. By way of backdrop, we decided to make this video as a way of responding to concerns and queries from our employer clients here in NY, particularly as it concerns final pay, commission, and separation notice.

Let us now dig in!

Termination/Separation

At times, employers server employment relationships with employees due to many issues that may lead to termination or suspension pending review. If this happens, the first thing an employer should do is serve the employee with a letter notifying them that they have been terminated effective on a given date, after which such an employee would cease working for the employer.

Final Pay

Following termination/separation, an employee would be or no longer entitled to any benefits and/or compensation based on the existing statutory requirements. The NY labor law Section 191 provides that every employer shall pay the unpaid wages no later than the regular payday for the pay period during which termination occurred, as established.

Compensations (PTO (Paid Time Off), Vacation Time, & Sick Leave)

Further, an employee should be compensated if they have earned vacation time. However, the question of whether the employee should be compensated for the same depends on what the handbook’s policy says. If the handbook says it should be paid, then it should. On the contrary, the employee should not be paid if the handbook says it should not be paid. Essentially, even if it is vested, if the handbook clearly states that employment benefits (such as PTO, accumulated sick leave, and/or vacation time) would not be paid upon termination, then it should not. Courts in NY are very magnanimous and will try everything within the legal provisions of the existing statute to extend the same courtesy to the employee. Nonetheless, if the handbook says otherwise, then the employee does not get paid.

Commissions

Keeping in mind that they are part of an employee’s salary/earned wages, commissions is quite a recent subject when it comes to labor law. Generally speaking, any earned commissions should be paid to the employee on the final day following termination. Again, the answer to the question of whether commissions are earned and should be paid depends on what the handbook says about the same. Pursuant to Section 191(1c) of the NY labor code, both the employer and employee are supposed to sign, based on a discussion of the same under wages, salaries, and/or compensations and as per the handbook provisions, all commission policies and agreements. Such an agreement has to be in file for at least three years. However, should a question or issue arise, the NY code and common law have three specific items of reference to such a matter: (1) if there is a written agreement, (2) if there is no written agreement, and (3) if there are expressed or implied agreements. If there is no consistency, policy, or agreement in place, the case law applies a standard that the employee produces a ready, willing, and able purchaser.

At times, an employer may not have a signed agreement for the commissioned employee. In such a case, the employer is not sanctioned or penalized, but a court would make presumptions in favor of the employee. 

Please, feel free to view our video at https://www.youtube.com/watch?v=M8MtWw38rRo.

As we continue hammering on new stuff every day, stay tuned for more educative videos, inspiring training, & legal advice. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.