ELAINE PACHTER, Plaintiff-Appellee, --v.-- BERNARD HODES GROUP, INC., Defendant-Appellant., 541 F.3d 461

Summary

The employer claimed that N.Y. Lab. Law § 193 did not cover executives, such as the employee, and that its deductions from her commissions were legal. The appellate court held that the New York Court of Appeals' answers to the two certified questions resolved the appeal, and that the employer's deductions from the employee's monthly commissions did not violate N.Y. Lab. Law § 193. The appellate court found that the employee was covered by N.Y. Lab. Law § 193 because that provision included executives unless otherwise excluded. The appellate court then found that the employee's action failed because the question of when a commission was earned and became a wage for purposes of N.Y. Lab. Law §§ 191 and 193 was regulated by the parties' express or implied agreement, and it was undisputed that the employee knowingly acquiesced over a period of years to the approach used by the employer when calculating her commissions, conduct that constituted, at the very least, an implied agreement ...