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

Leveraging Plaintiff and Defense Theories in Unpaid Commission Claims

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, March 7, 2017
Recorded event now available

This CLE webinar will provide guidance to employment counsel for structuring commission pay agreements that minimize the likelihood of unpaid commission claims. The panel will also discuss plaintiff and defense theories in this often misunderstood area of the law.


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?


Natalie M. Koss, Managing Partner
Potomac Legal Group, Washington, D.C.

Ms. Koss actively litigates both commercial and employment cases and has successfully negotiated settlement agreements on behalf of corporate and individual clients. Ms. Koss also represents clients in business tort, employment disputes and copyright infringement cases and has tried both bench and jury cases in federal and state courts.

Elisaveta (Leiza) Dolghih, Shareholder
Godwin Bowman & Martinez, Dallas

Ms. Dolghih concentrates her practice on a broad range of business and employment litigation matters, with a focus on prosecution and defense of unfair competition, noncompetition agreements, and misappropriation of trade secrets claims, including temporary restraining orders and temporary injunction hearings. She counsels company clients regarding compliance with employment-related statutes such as Title VII, The American with Disabilities Act, Pregnancy Discrimination Act, Age Discrimination in Employment Act, Family Medical Leave Act, Federal Labor Standards Act, OSHA, and other federal and state employment laws.

Clint D. Robison, Shareholder
LeClairRyan, Los Angeles

Mr. Robison is an experienced employment attorney, providing counseling, litigation and risk management services. He defends class action suits against employers against a variety of claims, including wage issues. He regularly defends against single and multi-plaintiff suits and claims covering a range of matters, including trade secrets, unfair competition, discrimination, retaliation, harassment, disability issues, leave laws and wages. He also handles sensitive matters, including audits, drafting arbitration agreements, drafting separation documentation, and conducting board-level internal investigations. He has structured and implemented wage and hour compliance systems for employers and addressed employment issues for clients of a foreign insurance syndicate by developing a cutting edge risk management system. 


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