When a Salesperson Has to be Employed at the Time the Commission Comes Due
New York strictly enforces the law that an employer can fire an employee at will, meaning, at any time, for any reason or no reason at all, unless the firing is for a discriminatory purpose, or the employee has a contract that unambiguously specifies a time period for the employment. If the employee is a commissioned salesperson, the employment contract can specify that the employee must be employed at the time that the commission falls due in order to get paid. Frequently, a salesperson will get fired just before a commission falls due. When this happens the salesperson will feel cheated out of the commission, but the employer is relying on the unfettered right to fire an employee, at will. New York courts have recently dealt anew with this issue. They realized that firing an employee in order to avoid a commission that would otherwise become due is an anomaly by which the better the employee performs, the greater the risk of getting fired. It was therefore held that a fired employee might indeed recover the commission under our situation. However, this law is new and while one court held that the employee must prove that the avoidance of the commission was a substantial motivating factor in the firing, others held that the employer could avoid liability by proving that the firing was for some other reason, even if erroneous or unjustified. In other words, the employer could contrive the outcome, but the jury has the final say.