Relates to requiring an additional disclosure to be promulgated by the department of labor when a person shall be compensated exclusively by commissions.
STATE OF NEW YORK
________________________________________________________________________
8651
2017-2018 Regular Sessions
IN ASSEMBLY
September 1, 2017
___________
Introduced by M. of A. M. G. MILLER -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to requiring an additional
disclosure when a person shall be compensated exclusively by commis-
sions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 6 of section 190 of the labor law, as added by
2 chapter 548 of the laws of 1966, is amended to read as follows:
3 6. "Commission [salesman] salesperson" means any employee whose prin-
4 cipal activity is the selling of any goods, wares, merchandise,
5 services, real estate, securities, insurance or any article or thing and
6 whose earnings are based in whole or in part on commissions. The term
7 "commission [salesman] salesperson" does not include an employee whose
8 principal activity is of a supervisory, managerial, executive or admin-
9 istrative nature.
10 § 2. Paragraph c of subdivision 1 of section 191 of the labor law, as
11 amended by chapter 304 of the laws of 2007, is amended to read as
12 follows:
13 c. Commission salespersons.--(i) A commission salesperson shall be
14 paid the wages, salary, drawing account, commissions and all other
15 monies earned or payable in accordance with the agreed terms of employ-
16 ment, but not less frequently than once in each month and not later than
17 the last day of the month following the month in which they are earned;
18 provided, however, that if monthly or more frequent payment of wages,
19 salary, drawing accounts or commissions are substantial, then additional
20 compensation earned, including but not limited to extra or incentive
21 earnings, bonuses and special payments, may be paid less frequently than
22 once in each month, but in no event later than the time provided in the
23 employment agreement or compensation plan. The employer shall furnish a
24 commission salesperson, upon written request, a statement of earnings
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13421-01-7
A. 8651 2
1 paid or due and unpaid. The agreed terms of employment shall be reduced
2 to writing, signed by both the employer and the commission salesperson,
3 kept on file by the employer for a period not less than three years and
4 made available to the commissioner upon request. Such writing shall
5 include a description of how wages, salary, drawing account, commissions
6 and all other monies earned and payable shall be calculated. Where the
7 writing provides for a recoverable draw, the frequency of reconciliation
8 shall be included. Such writing shall also provide details pertinent to
9 payment of wages, salary, drawing account, commissions and all other
10 monies earned and payable in the case of termination of employment by
11 either party. The failure of an employer to produce such written terms
12 of employment, upon request of the commissioner, shall give rise to a
13 presumption that the terms of employment that the commissioned salesper-
14 son has presented are the agreed terms of employment.
15 (ii) Where a commission salesperson shall be paid exclusively in
16 commissions as part of the written terms of employment as required in
17 subparagraph (i) of this paragraph, the employer shall also include an
18 additional document to be signed by both such employer and such commis-
19 sion salesperson. The department shall promulgate such document which
20 shall be titled "Commission Only Compensation Disclosure" and shall
21 include in not less than fourteen point bold type: (A) a clear statement
22 that such commission salesperson shall receive monetary compensation
23 from commissions only and shall not receive a salary or hourly wage; and
24 (B) a statement that by signing such document, the commission salesper-
25 son understands and agrees to such compensation structure.
26 § 3. Subdivision 1 of section 191-b of the labor law, as added by
27 chapter 451 of the laws of 1987, is amended to read as follows:
28 1. When a principal contracts with a sales representative to solicit
29 wholesale orders within this state, the contract shall be in writing and
30 shall set forth the method by which the commission is to be computed and
31 paid. Where a sales representative shall be paid exclusively in commis-
32 sions as part of the required contract the principal shall include an
33 additional document to be signed by both such principal and such sales
34 representative. The department shall promulgate such document which
35 shall be titled "Commission Only Compensation Disclosure" and shall
36 include in not less than fourteen point bold type: (A) a clear statement
37 that such sales representative shall receive monetary compensation from
38 commissions only and shall not receive a salary or hourly wage; and (B)
39 a statement that by signing such document, the sales representative
40 understands and agrees to such compensation structure.
41 § 4. This act shall take effect immediately; provided, however, that
42 effective immediately, the addition, amendment and/or repeal of any rule
43 or regulation necessary for the implementation of this act on its effec-
44 tive date are authorized and directed to be made and completed on or
45 before such effective date.
