An employer`s inability to write this letter or update its existing letter is based on the presumption that the terms and conditions of employment described by the delegated vendor and not by the employer are correct. The FLSA does not require or regulate the payment of commissions. However, New York State law specifically regulates mandated employees. Under these laws, employees who receive part of their remuneration through commissions must benefit from a written employment contract which stipulates that employers must have concluded a written agreement with each mandated seller regarding their remuneration. The employer and the mandated seller must sign the contract. The employer must keep a copy of the agreement for at least three years. The New York Labor Act also establishes other requirements (not discussed here) for “commercial agents” who are independent contractors and not employees. When it comes to your company`s specific needs, you should consult with legal counsel to develop and implement a verification process that closely examines your relationships with mandated salespeople, a process that should involve staff. If necessary, the lawyer may be obliged to draw up an order purchase contract in accordance with the requirements of the new law. Failure to comply with these requirements can be detrimental, given that in the absence of a written agreement, the law considers that the employee`s recitation on the terms of his commission contract is correct. As a result, New York employers should immediately recall in writing the commission agreements with all their sellers. Employers should also ensure that such agreements are signed by all parties and specify all necessary conditions.
In addition, in order to minimise the risk of onerous litigation, it is recommended that employers include in the agreement an internal procedure that the worker must follow if he considers that the commissions earned have not been properly paid. Since the courts have taken different approaches to the legal calculation of commissions, employers should consult a lawyer when drafting these agreements. As a general rule, this must be at least once a month and until the last day of the month following that in which the employee earned the remuneration. However, if monthly or more frequent payments of salaries, wages, drawing accounts or commissions are large, the employer may pay less often than once a month an additional allowance. . . .