Commission Pay for Employees: Structuring Agreements and Defending Claims Absent a Contract

Unpaid commission claims are common, as more and more employees are being paid on a commission basis. In many cases, however, commission agreements are insufficient or non-existent. Ambiguous and insufficient arrangements often lead to disputes that can be costly for both employers and employees.

If a court finds that an employer failed to pay earned commission to a worker, the court, in some instances, can double or triple damages and award substantial attorney fees. It can also result in state enforcement of unpaid commissions. As such, a solid written commission agreement between the parties is imperative.

Employers' counsel must be equipped with the substantive tools to prepare a commission agreement that helps employers avoid costly litigation and damages. Counsel representing employees paid on commission must understand the theories upon which unpaid commission claims can be pursued.

Listen as our distinguished panel discusses effective drafting techniques for commission agreements, including key provisions on termination, draws and overtime requirements. The panel will provide plaintiff and defense trial theories and techniques.

1. Drafting commission agreements
   1. How and when is the commission earned
   2. Termination
   3. Allowable deductions
   4. Draws
   5. Overtime requirements
   6. Documenting changes in the commission agreements
2. Plaintiff theories and techniques
   1. Claims against employer
   2. Written discovery strategies
   3. Special considerations deposing the employer and 30(b)(6) depositions
   4. Deposing co-workers
   5. Use of experts in calculating damages
   6. Special concerns
3. Defense theories and techniques
   1. Protecting trade secrets in litigation
   2. Defenses against claims
   3. Deposing the employee
4. Interaction with federal and state statutes

The panel will review these and other key issues:

• What are the key provisions in a commission agreement?
• When and how are commissions considered earned?
• What are successful theories upon which an employee may seek unpaid commissions?
• What are successful defense theories to a claim of unpaid commissions?