S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8651
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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:
 
   Section  1. Subdivision 6 of section 190 of the labor law, as added by
 chapter 548 of the laws of 1966, is amended to read as follows:
   6. "Commission [salesman] SALESPERSON" means any employee whose  prin-
 cipal  activity  is  the  selling  of  any  goods,  wares,  merchandise,
 services, real estate, securities, insurance or any article or thing and
 whose earnings are based in whole or in part on  commissions.  The  term
 "commission  [salesman]  SALESPERSON" does not include an employee whose
 principal activity is of a supervisory, managerial, executive or  admin-
 istrative nature.
   §  2. Paragraph c of subdivision 1 of section 191 of the labor law, as
 amended by chapter 304 of the laws  of  2007,  is  amended  to  read  as
 follows:
   c.  Commission  salespersons.--(I)  A  commission salesperson shall be
 paid the wages, salary,  drawing  account,  commissions  and  all  other
 monies  earned or payable in accordance with the agreed terms of employ-
 ment, but not less frequently than once in each month and not later than
 the last day of the month following the month in which they are  earned;
 provided,  however,  that  if monthly or more frequent payment of wages,
 salary, drawing accounts or commissions are substantial, then additional
 compensation earned, including but not limited  to  extra  or  incentive
 earnings, bonuses and special payments, may be paid less frequently than
 once  in each month, but in no event later than the time provided in the
 employment agreement or compensation plan. The employer shall furnish  a
 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
 
 paid or due and unpaid. The agreed terms of employment shall be  reduced
 to  writing, signed by both the employer and the commission salesperson,
 kept on file by the employer for a period not less than three years  and
 made  available  to  the  commissioner  upon request. Such writing shall
 include a description of how wages, salary, drawing account, commissions
 and all other monies earned and payable shall be calculated.  Where  the
 writing provides for a recoverable draw, the frequency of reconciliation
 shall  be included. Such writing shall also provide details pertinent to
 payment of wages, salary, drawing account,  commissions  and  all  other
 monies  earned  and  payable in the case of termination of employment by
 either party. The failure of an employer to produce such  written  terms
 of  employment,  upon  request of the commissioner, shall give rise to a
 presumption that the terms of employment that the commissioned salesper-
 son has presented are the agreed terms of employment.
   (II) WHERE A COMMISSION  SALESPERSON  SHALL  BE  PAID  EXCLUSIVELY  IN
 COMMISSIONS  AS  PART  OF THE WRITTEN TERMS OF EMPLOYMENT AS REQUIRED IN
 SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE EMPLOYER SHALL ALSO  INCLUDE  AN
 ADDITIONAL  DOCUMENT TO BE SIGNED BY BOTH SUCH EMPLOYER AND SUCH COMMIS-
 SION SALESPERSON. THE DEPARTMENT SHALL PROMULGATE  SUCH  DOCUMENT  WHICH
 SHALL  BE  TITLED  "COMMISSION  ONLY  COMPENSATION DISCLOSURE" AND SHALL
 INCLUDE IN NOT LESS THAN FOURTEEN POINT BOLD TYPE: (A) A CLEAR STATEMENT
 THAT SUCH COMMISSION SALESPERSON  SHALL  RECEIVE  MONETARY  COMPENSATION
 FROM COMMISSIONS ONLY AND SHALL NOT RECEIVE A SALARY OR HOURLY WAGE; AND
 (B)  A STATEMENT THAT BY SIGNING SUCH DOCUMENT, THE COMMISSION SALESPER-
 SON UNDERSTANDS AND AGREES TO SUCH COMPENSATION STRUCTURE.
   § 3. Subdivision 1 of section 191-b of the  labor  law,  as  added  by
 chapter 451 of the laws of 1987, is amended to read as follows:
   1.  When  a principal contracts with a sales representative to solicit
 wholesale orders within this state, the contract shall be in writing and
 shall set forth the method by which the commission is to be computed and
 paid.  WHERE A SALES REPRESENTATIVE SHALL BE PAID EXCLUSIVELY IN COMMIS-
 SIONS AS PART OF THE REQUIRED CONTRACT THE PRINCIPAL  SHALL  INCLUDE  AN
 ADDITIONAL  DOCUMENT  TO BE SIGNED BY BOTH SUCH PRINCIPAL AND SUCH SALES
 REPRESENTATIVE. THE DEPARTMENT  SHALL  PROMULGATE  SUCH  DOCUMENT  WHICH
 SHALL  BE  TITLED  "COMMISSION  ONLY  COMPENSATION DISCLOSURE" AND SHALL
 INCLUDE IN NOT LESS THAN FOURTEEN POINT BOLD TYPE: (A) A CLEAR STATEMENT
 THAT SUCH SALES REPRESENTATIVE SHALL RECEIVE MONETARY COMPENSATION  FROM
 COMMISSIONS  ONLY AND SHALL NOT RECEIVE A SALARY OR HOURLY WAGE; AND (B)
 A STATEMENT THAT BY SIGNING  SUCH  DOCUMENT,  THE  SALES  REPRESENTATIVE
 UNDERSTANDS AND AGREES TO SUCH COMPENSATION STRUCTURE.
   §  4.  This act shall take effect immediately; provided, however, that
 effective immediately, the addition, amendment and/or repeal of any rule
 or regulation necessary for the implementation of this act on its effec-
 tive date are authorized and directed to be made  and  completed  on  or
 before such effective date.