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involves amounts paid based on sales made by the
employee), it is a commission, regardless of what it is
called within the company. If, however, the incentive
payment is based on something else (performance
evaluations, or a share of the company’s overall profits or
revenues), it is a bonus, not a commission, and not
subject to the Wage Act.
What this means is that an employee can enforce a
right to earned commissions under the Wage Act, which
includes triple damages and attorneys’ fees. An
employer can set a commission policy that defines when
a commission is earned- for example, upon payment by
the customer, completion of service or delivery of
product, or when a customer signs an agreement. If there
is no policy defining the trigger, a court may default to
the closing of a sale as the triggering event.
53| Rules of the Road
