State laws that affect the relationship between a manufacturer and a commissioned independent sales representative
Posted: June 12, 2013 Filed under: Uncategorized | Tags: Commission (remuneration), Contract, Independent Rep, Independent Sales Rep. Independent Sales Representative, Iowa, Lawsuit, Manufacturer, Principal, Rep, Sales, Sales Rep, statute, Termination of employment Leave a commentYou need to make sure you understand the law if you are a manufacturer or an independent sales representative. For this chart, the following definitions shall apply.
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Referenced in a Statute as: |
Referred to Here as: |
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Manufacturer, Principal or Employer |
Mfg. |
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Commissioned Sales Person, Wholesale Sales Representative, Sales Representative, Employee (Iowa) |
Rep |
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Contract |
K |
The Headings used are defined or explained as:
State: This is the state where the law is applicable. Most of the statutes, however, say that a rep can sue for unpaid commissions in this state for money owed by the manufacturer in other states. Eleven states require a written contract between the Mfg. and the Rep. Three states probably require a written contract between a Mfg. and Rep. All states say that a request to pay a person a commission for a sale is a contract.
Statute Name & Number: This is the name of the statute and number of the statute. This is always linked to the statute.
K Required: This means the burden is on the Manufacturer to create a written contract. Many of the statutes require not only a signature of both parties but proof in the form of a receipt that the rep has received a copy of the contract.
Written K Controls (except non-payment issues): If there is a dispute or the written contract is different from the statute the written contract controls the payment of commissions upon termination.
Other K Requirements: Any special or unique issues in the statute that may be of importance.
Pay upon Termination: This is what the statute requires as far as commissions paid upon termination of the contract with the Rep.
Damages: If the Rep is not paid as per the contract or the statute, this sets forth the damages that a rep can recover for non-payment. Most states this is a factor of the commissions owed, which can be as much as four times the commissions owed. Iowa, Michigan, Minnesota and Missouri have more complicated ways of determining damages based upon the time until paid or other ways to calculate the damages.
Most states allow a rep, if successful in a suit to recover unpaid commission’s damages in excess of the commissions owed. In several cases that amount totals four times the commissions owed. If the rep is successful in recovering damages, the rep can also recover attorney fees and court costs.
Eight states allow the Mfg. to recover attorney fees and court costs if the lawsuit filed by the Rep was frivolous. Frivolous in a legal context means there was no basis for the suit. Have a claim and losing it for some reason, is not frivolous.
Most states require commissions that were earned but not due until after the termination of the Contact between the Mfg., and the Rep must be paid to the Rep.
Court Costs & Atty Fees: Either the Rep or in a few cases, the Prevailing party (winner) can recover court costs and attorney’s fees if they successfully sue for unpaid commissions.
Suit brought in a state of Rep Choice: This statute states that even though the Mfg. may not have a business location within the state, which would normally be needed to establish venue and jurisdiction over the manufacturer, the statute provides the necessary venue and jurisdiction. That means the manufacturer can be brought to suit in that state.
K can waive the statute: This means that a contract between the Rep and the Mfg. cannot waive parts of the statute, specifically the requirement on how commissions are to be paid on termination, damages, attorney fees and costs and whether and jurisdiction and venue are established.
Misc.: More unique or important sections of the statute you should know about.
This information is here as a starting point. Contact your attorney for additional information.
Click here to download a copy of this chart
27 state laws and short interpretations are listed below.
| State | Statute Name & Number | K Required | Written K Controls (except non-payment issues) | Other K Requirements | Pay upon Termination | Damages | Court Costs & Atty Fees | Suit brought in state of Rep Choice | K can waive statute | Misc |
| Alabama | Alabama Code Annotated § 8-24-1 | Maybe§ 8-24-2 | Yes§ 8-24-2 | Contract must set forth how commission calculated and to be paid. Mft must provide copy of contract to rep§ 44-1798.01 | 30 Days after termination30 Days post termination§ 8-24-2(c) | Three times damages§ 8-24-3 | Reasonable Attorney fees and Costs§ 8-24-3 | Yes§ 8-24-4 | No§ 8-24-5 | Rep can bring all claims against mfg in this action§ 8-24-5 |
| Arizona | Arizona Revised Statutes § 44-1798.01 | Yes§ 44-1798.01 A | Rep must receive a signed copy of the contract and sign a receipt acknowledging receipt of signed copy§ 44-1798.01 B | Paid within 30 days§ 44-1798.02 A14 days on commissions due after termination§ 44-1798.02 B | Three times the unpaid commissions owed§ 44-1798.02 C | Reasonable attorney fees and costs§ 44-1798.02 D | Final Settlement null & void unless paid in full§ 44-1798.02 F | |||
| Arkansas | Arkansas Code of 1987 4-70-301 |
Yes4-70-302(a) | Method of computation and payment must be in written contract4-70-302(a)Rep must receive copy of contract 4-70-302(b) | If not written contract, all commissions must be paid within 30 days after termination4-70-303 | 3 times damages4-70-306 | Reasonable attorney fees and costs4-70-306 | Yes4-70-302(c)4-70-304 | Waiver of statute is void4-70-305 | ||
| California | California Codes Annotated § 1738.10Independent Wholesale Sales Representatives Contractual Relations Act of 1990§ 1738.11 | Yes§ 1738.13(a) | Commission Rate, Payment dates, Territory, Territory Exceptions, ChargebacksRep must be given a copy of the contract, sign it and sign a receipt acknowledging receipt of the signed contract§ 1738.13(b) | Treble DamagesFailure to pay or Failure to have written contract§ 1738.15 | The Prevailing Party can recover Reasonable Attorney Fees & Costs§ 1738.16 | Yes§ 1738.14 | No§ 1738.13(e) | Rep must receive written info of all orders, customer name and invoice numberCommission rate on each order§ 1738.13(c) | ||
| Colorado | Colorado Revised Statutes 12-66-101 | Probably§ 12-66-103 | Treble damages12-66-103(1) | Prevailing Party receives Reasonable attorney fees and costs | Yes12-66-102 | |||||
| Illinois | Sales Representative Act. Illinois Compiled Statutes Annotated § 820 ILCS 120/0.01. | 13 days after termination and 13 days if commissions become payable after termination§ 820 ILCS 120/2 | Exemplary damages of 3 times commissions owed§ 820 ILCS 120/3 | Reasonable attorney fees and court costs to rep§ 820 ILCS 120/3 | No§ 820 ILCS 120/2 | |||||
| Indiana | Indiana Statutes Annotated 24-4-7-0.1 | Must be paid within 14 days24-4-7-5(a) | Exemplary Damages Three times the commissions owed24-4-7-5(b) | If exemplary damages awarded, the sales rep receives reasonable attorney fees and costs24-4-7-5(c)If suit is frivolous, the mfg can receive reasonable attorney fees and costs 24-4-7-5(c) | Yes24-4-7-6 | No24-4-7-8 | If you make an offer to pay commissions you cannot revoke the offer once the commissions are earned 24-4-7-7 | |||
| Iowa | Iowa Wage Payment Collection Law Iowa Code 91A.1 |
5% per day for every day not paid91A.2 6 | Yes if intentionally failed to pay91A.8 | Only disputed amounts can be withheld, all non-disputed amounts of commissions must be paid91A.7 | ||||||
| Louisiana | Louisiana Revised Statutes § 51:441 | Yes§ 51:442 | A written contract supersedes statute on payment of wages§ 51:442 | Rep must receive a copy of the contract§ 51:442 | Per the contract or On the 30th working day after termination§ 51:443 | Treble damages§ 51:444 | Rep’s Attorney fees§ 51:444 | Yes§ 51:445 A§ 51:445 C | No§ 51:445 B | Sales Rep can sue for all money owed under this statute.Statute does not prohibit other seeking other forms of relief§ 51:445 D |
| Maine | Maine Revised Statutes Annotated § 1341 | Unless otherwise in contract requires 14 days’ notice to terminate§ 1342 | Payment within 30 days of termination§ 1343 | Exemplary damages of 3 times commissions owed§ 1344 1 | Reasonable attorney fees and costs§ 1344 1 | Yes§ 1344 4 | Yes§ 1343 | If action was frivolous mfg can recover actual attorney fees and costs§ 1344 2 | ||
| Maryland | Annotated Code of Maryland § 3-601 |
Commissions must be paid within 45 days of termination§ 3-604 | Can recover up to 3 times the commissions due§ 3-605(a)(1) | Reasonable attorney fees and costs§ 3-605(b) | Yes§ 3-606 | Law cannot be waived§ 3-603 | Rep must give mfg 10 days’ | |||
| Massachusetts | Annotated Laws of Massachusetts Chpt 104 § 7 |
YesChpt 104 § 8 | Commissions must be paid within 14 days of terminationChpt 104 § 8Commissions that come due after termination must be paid within 14 daysChpt 104 § 8 | Willfully or knowingly fails to pay, rep can recover an additional 3 times the amount dueChpt 104 § 9 | Rep can recover reasonable attorney fees and court costsChpt 104 § 9 | Yes104 § 9 | NoChpt 104 § 9 | |||
| Michigan | Michigan Compiled Laws § 600.2961 | YesSec. 2961(e)(2) | Commissions must be paid within 45 days of termination§ 600.2961(e)(4) | Actual damages plus 2 times amount of commissions or $100K or whatever is less§ 600.2961(e)(5)(b) | Rep can recover reasonable attorney fees and costs§ 600.2961(e)(5) | No§ 600.2961(e)(8) | ||||
| Minnesota | Minnesota Statutes 181.13 | Yes§ 407.912 | 3 days after termination181.145 Subd 2 | Penalty of 1/15 per day not to exceed 15 days181.145 Subd 3 | Yes181.171 Subd 3 | Sales made before termination must be paid after termination181.145 Subd 5 | ||||
| Missouri | Missouri § 407.911 | Yes§ 407.912 | Within 30 days of termination§ 407.912 | Based on the time due till paid§ 407.913 | Reasonable attorney fees and costs§ 407.913 | Yes§ 407.914 | No§ 407.915 | Rep to be paid on commissions earned before termination but not due until after termination§ 407.912 2 | ||
| Nebraska | Nebraska Wage Payment and Collection Act Nebraska Revised Statutes Annotated § 48-1229 | 30 days after termination§ 48-1231(1) | Court Costs and attorney fees of not less than 25% of damages§ 48-1231(1) | Damages are increased if case appealed§ 48-1231(1) | ||||||
| New Hampshire | Sales Representatives and Post-Termination Commissions New Hampshire Revised Statutes Annotated 339-E:1 | Yes339-E:2 | Commissions must be paid within 45 days of termination339-E:2 | Exemplary damages of 3 times commission339-E:3 | Reasonable attorney fees and costs339-E:3 | Yes339-E:4 | No339-E:2 & 339-E:6 | Commissions must be paid on orders before termination§ 2A:61A-2If Sales Rep brings frivolous suit mfg. can recover attorney fees§ 2A:61A-3 | ||
| New Jersey | New Jersey Annotated Statutes § 2A:61A-1. |
Must be paid within 30 days§ 2A:61A-2 | Exemplary damages of 3 times amount of commissions owed§ 2A:61A-3 | Actual and reasonable attorney fees and costs§ 2A:61A-3 | Yes§ 2A:61A-5 | No§ 2A:61A-6 | ||||
| New York | New York Consolidated Laws § 190 |
Yes§ 191-b 1 | Yes, K must be signed by both parties and kept on file at mfg. for 3 years§ 191 b | Must be paid within 5 business days§ 191-c 1 | Double damages§ 191-c 3 | Prevailing party receives reasonable attorney fees and costs§ 191-c 3 | Commissions must be paid at least monthly§ 191 cCommissions earned after termination must be paid§ 191-a (b) | |||
| North Carolina | General Statutes of North Carolina § 66-190 | Yes§ 66-190.1 | 30 days after termination unless rep commits malfeasance§ 66-191 | 2 times damages§ 66-192(a) | Attorney fees actually and reasonably incurred and court costs§ 66-192(c) | Yes§ 66-192(c) | No§ 66-193 | Commissions that come due after termination must be paid within 15 days§ 66-191 | ||
| Oklahoma | Sales Representatives Recognition Act Oklahoma Statutes Annotated § 675 | Yes§ 677 1 | 14 days after termination14 days on commissions that come due after termination§ 678 A | Prevailing party reasonable attorney fees and costs§ 678 B | Yes§ 679 A | No§ 679 B | Rep can recover all claims in OK case against mfg§ 679 C | |||
| Pennsylvania | Commissioned Sales Representatives Pennsylvania Statutes Annotated § 1471 | Yes§ 1472 | Yes§ 1475.1 | 14 days after termination§ 147314 days on commissions earned after termination§ 1474 | 2 times the commissions due§ 1475(a)(1) | Cost of the suit and reasonable attorney fees§ 1475(a)(2) | No§ 1476 | If case is frivolous then mfg can recover reasonable attorney fees and costs§ 1475(b) | ||
| South Carolina | Payment Of Post-Termination Claims To Sales Representatives South Carolina Code of Laws § 39-65-10 | Seems to be.§ 39-65-20 | Yes§ 39-65-20 | Paid as terms of the contract§ 39-65-20 | Commissions due plus 3 times damages§ 39-65-30(1) | Actually and reasonably incurred attorney fees and court costs§ 39-65-30(2) | Yes§ 39-65-50 | No§ 39-65-70 | If the suit brought by the Rep is frivolous the mfg may recover attorney fees and costs§ 39-65-40Rep may bring all actions against mfg in SC§ 39-65-60 | |
| Tennessee | Tennessee Code Annotated § 47-50-114 | Yes47-50-114 (b) (1) | Yes§ 47-50-114(b)(1) | 14 days after termination§ 47-50-114(b)(c) | Mfg acting in bad faith liable for exemplary damages of treble the amount of commissions§ 47-50-114(d) | Reasonable attorney’s fees and court costs§ 47-50-114(d) | Yes§ 47-50-114(e) | No§ 47-50-114(f) | Commissions earned after termination must be paid within 14 days§ 47-50-114(b)(c)If action brought by Rep is frivolous mfg can recover attorney fees and court costs47-50-114(d) | |
| Virginia | Code of Virginia § 59.1-455 | Yes§ 59.1-456 | Yes§ 59.1-457 | Per contract but not later than 30 days§ 59.1-457 | No§ 59.1-458 | Post termination commissions must be paid within 30 days§ 59.1-457 | ||||
| Washington | Annotated Revised Code of Washington §49.48.150 | Yes§49.48.160(1) | Yes§49.48.160(1) | Per contract but no later than 30 days§49.48.160(3) | Yes§49.48.180 | No§49.48.160(1) §49.48.190 |
All commissions including commissions earned by not due must be paid upon termination§49.48.160 | |||
| Wisconsin | Wisconsin Statute § 134.93 | Yes§ 134.93(3) | Due upon termination§ 134.93(4) | Exemplary damages 200% of the commission owed§ 134.93(5) | 90 days written notice of termination must be given to rep§ 134.93(3) |
If you are a manufacturer, distributor or importer hiring independent reps, make sure you have a contract that protects you from being sued in 27 other states.
If you are a rep, insist on a contract with every manufacturer you represent.
Either way, you both will be better off.
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Louisiana Sales Representative
Posted: March 17, 2013 Filed under: Louisiana | Tags: Contract, IC, Independent Sales Rep, Louisiana, Rep, STATUTES Leave a commentLOUISIANA STATUTES ANNOTATED
LOUISIANA REVISED STATUTES
TITLE 51. TRADE AND COMMERCE
CHAPTER 1. IN GENERAL
PART 8. UNFAIR TRADE
SUBPART F. SALES REPRESENTATIVES
GO TO LOUISIANA STATUTES ARCHIVE DIRECTORY
La. R.S. 51:441 (2012)
§ 51:441. Definitions
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.
(2) “Principal” means a person who:
(a) Repealed by Acts 1995, No. 487, § 2.
(b) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(c) Uses a sales representative to solicit orders for the product; and
(d) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product.
(4) “Termination” means the end of services performed by a sales representative for a principal whether by discharge, resignation, or expiration of a contract.
HISTORY: Acts 1988, No. 774, § 1, eff. July 18, 1988; Acts 1995, No. 487, §§ 1, 2.
§ 51:442. Contract
If there is a written contract between a principal and a sales representative under which the sales representative solicits wholesale orders within this state, it shall set forth the method by which the sales representative’s commission shall be computed and paid. The principal shall provide the sales representative with a copy of the contract.
§ 51:443. Payment of commissions; timely payment
Upon termination of any written or oral compensation agreement between a sales representative and a principal, the principal shall pay all commissions due the sales representative as specified in the agreement or, if not specified, no later than the thirtieth working day after the date of termination.
§ 51:444. Attorney fees and damages
A judgment or decree issued in any action brought by a sales representative for the payment of commissions by a principal may include payment by the principal of attorney fees and treble damages incurred by the sales representative.
§ 51:445. Certain venue provisions invalid
A. Any provision in a written or oral contract or agreement providing for the payment of commissions by a principal to a sales representative which purports to establish exclusive venue in a state other than Louisiana is hereby declared to be null and void and against the public policy of this state and such provision shall be void and unenforceable.
B. Any provision in a written or oral contract or agreement which requires waiver of this Section or which would frustrate or circumvent the provisions of this Section shall be null and void and of no force and effect.
C. A principal who is not a resident of this state and who enters into a contract subject to the provisions of this Subpart is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
D. The provisions of this Subpart do not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
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Maine Sales Representative
Posted: March 17, 2013 Filed under: Maine | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Manufacture, Rep, STATUTES Leave a commentMaine Revised Statutes Annotated by LexisNexis(R)
TITLE 10. COMMERCE AND TRADE
PART 3. REGULATION OF TRADE
CHAPTER 210-A. SALES REPRESENTATIVE COMMISSION CONTRACTS
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
10 M.R.S. § 1341 (2012)
§ 1341. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. COMMISSIONS. “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales.
2. PRINCIPAL. “Principal” means a person, partnership, corporation or other business entity that does not have a permanent or fixed place of business in this State and that:
A. Manufactures, produces, imports or distributes a product for wholesale;
B. Contracts with sales representatives to solicit orders for the product; and
C. Compensates the sales representative, in whole or in part, by commission.
3. SALES REPRESENTATIVE. “Sales representative” means a person who:
A. Contracts with a principal to solicit orders for the purchase at wholesale of the principal’s product;
B. Is compensated, in whole or in part, by commission; and
C. Does not place orders or purchase for that person’s own account or for resale.
§ 1342. Notice of termination
Unless a contract between a sales representative and a principal provides otherwise, a party terminating the contract must give the other party 14 days’ written notice of the termination.
§ 1343. Contract
If a contract between a sales representative and a principal is terminated, the principal shall pay to the sales representative all commissions accrued under the contract within 30 days after the effective date of that termination. Any provision of any contract between a sales representative and a principal that purports to waive any provision of this chapter is void.
§ 1344. Civil liability
1. PRINCIPAL LIABILITY. A principal who fails to comply with the provisions of section 1343 is liable to the sales representative in a civil action for exemplary damages in an amount that does not exceed 3 times the amount of commissions due the sales representative, plus reasonable attorney’s fees and costs.
2. FRIVOLOUS ACTION. When the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
3. OTHER REMEDIES. Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative, or precludes a sales representative from seeking to recover in one action on all claims against a principal.
4. JURISDICTION. A principal who is not a resident of this State that contracts with a sales representative to solicit orders in this State is declared to be transacting business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Title 14, section 704-A.
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Maryland Sales Representative
Posted: March 17, 2013 Filed under: Maryland | Tags: Commission (remuneration), IC, Independent Sales Rep, MARYLAND, Rep, Sales, statute Leave a commentMaryland Sales Representative
LABOR AND EMPLOYMENT
TITLE 3. EMPLOYMENT STANDARDS AND CONDITIONS
SUBTITLE 6. WHOLESALE SALES REPRESENTATIVES
GO TO MARYLAND STATUTES ARCHIVE DIRECTORY
Md. LABOR AND EMPLOYMENT Code Ann. § 3-601 (2012)
§ 3-601. Definitions
(a) In general. — In this subtitle the following words have the meanings indicated.
(b) Commission. — “Commission” means compensation that:
(1) is due to a sales representative from a principal; and
(2) accrues at:
(i) a specified amount for each order or sale; or
(ii) a rate expressed as a percentage of the dollar amount that a sales representative:
1. takes in orders for the principal;
2. makes in sales for the principal; or
3. earns in profits for the principal.
(c) Principal. — “Principal” means a sales corporation, partnership, proprietorship, or other business entity that:
(1) distributes, imports, manufactures, or produces a product for wholesale;
(2) enters into a contract with a sales representative to solicit a wholesale order for the product; and
(3) pays the sales representative wholly or partly by commission.
(d) Sales representative. —
(1) “Sales representative” means a person who:
(i) enters into a contract with a principal to solicit in the State a wholesale order; and
(ii) is paid wholly or partly by commission.
(2) “Sales representative” does not include a person who:
(i) buys a product or places an order for a product for resale by that person; or
(ii) sells or takes an order for the sale of a product to an ultimate buyer.
§ 3-602. Scope of subtitle
This subtitle does not apply to an individual who is considered under the Maryland Wage Payment and Collection Law to be employed by a principal.
§ 3-603. Void waivers
A provision of a contract that is made between a sales representative and a principal is void if the provision purports to waive any provision of this subtitle by:
(1) an express waiver; or
(2) a contract subject to the laws of another state.
§ 3-604. Payment of commission on termination of contract
Each principal shall pay to a sales representative all commissions that are due under a contract that is terminated, within 45 days after payment would have been due if the contract had not terminated.
§ 3-605. Action by sales representative
(a) Treble damages. —
(1) Subject to the requirement of paragraph (2) of this subsection, if a principal violates § 3-604 of this subtitle, a sales representative whom the violation affects is entitled to bring an action against the principal to recover up to 3 times the amount of all commissions that the principal owes to the sales representative.
(2) At least 10 days before an action is brought under this subsection, the sales representative shall give the principal written notice of intent to bring the action.
(b) Costs. — If a court determines that a sales representative is entitled to judgment in an action under this section, the court shall allow against the principal reasonable counsel fees and court costs.
§ 3-606. Personal jurisdiction
For purposes of personal jurisdiction under § 6-103 of the Courts Article, a principal who contracts with a sales representative to solicit wholesale orders for a product in the State is considered to be transacting business in the State.
§ 3-607. Revocable offer of commission
(a) Entitlement to commission. — If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed on if:
(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for the purpose of avoiding payment of the commission; or
(2) (i) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and
(ii) the principal’s product that is the subject of the order is shipped to and paid for by a customer.
(b) Construction of section. — This section may not be construed to:
(1) impair the application of § 2-201 or § 2-209 of the Commercial Law Article;
(2) abrogate any rule of agency law; or
(3) unconstitutionally impair the obligations of contracts.
WordPress Tags: Maryland,Sales,Representative,Code,LABOR,EMPLOYMENT,TITLE,STANDARDS,CONDITIONS,SUBTITLE,WHOLESALE,STATUTES,ARCHIVE,DIRECTORY,Definitions,meanings,Commission,compensation,sale,percentage,dollar,Principal,corporation,partnership,product,person,State,buyer,Scope,Wage,Payment,Collection,Void,waivers,provision,waiver,laws,termination,Action,Treble,Subject,requirement,paragraph,subsection,violation,Costs,judgment,Personal,jurisdiction,purposes,Courts,Article,Revocable,Entitlement,employee,revocation,purpose,efforts,customer,Construction,Commercial,agency,obligations
Massachusetts Sales Representatives
Posted: March 17, 2013 Filed under: Massachusetts | Tags: Contract, IC, Independent Sales Rep, Law, Massachusetts, Rep Leave a commentANNOTATED LAWS OF MASSACHUSETTS
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE XV REGULATION OF TRADE
Chapter 104 Agents, Consignees and Factors
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 104, § 7 (2012)
§ 7. Sales Representatives — Definitions.
The following terms as used in sections eight and nine, unless the context otherwise requires, shall have the following meanings:
“Commission”, compensation accruing to a sales representative for payment by a principal, earned through the last day on which services were performed by the sales representative, the rate of which is expressed as a percentage of the dollar amount of orders or sales.
“Principal”, a person who manufactures, produces, imports or distributes a product for wholesale; contracts to solicit orders for such product, and compensates individuals who solicit wholesale orders in whole or in part, by commission.
“Sales representative”, a person other than an employee, who contracts with a principal to solicit wholesale orders in the commonwealth and who is compensated, in whole or in part, by commission but shall not include one who places orders or purchases exclusively for his own account for resale.
“Day”, any calendar day, including Saturdays, Sundays and legal holidays.
“Termination”, the end of services performed by the sales representative for the principal whether by expiration of a contract, discharge or resignation.
§ 8. Sales Representatives — Commissions.
The terms of the contract between a principal and a sales representative shall determine when a commission shall be due. If the time when such commission shall be due is not specified in a contract, the past practices between the parties shall control or, if there are no such past practices, the custom and usage prevalent in the commonwealth for the business that is the subject of the relationship between the parties shall control. All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within fourteen days after the date of termination. Commissions that become due after the termination date shall be paid within fourteen days after the date on which the commissions became due.
§ 9. Sales Representatives — Commissions — Failure to Pay.
A principal who wilfully or knowingly fails to comply with provisions relating to the prompt payment of commissions set forth in section eight shall be liable to the sales representative in a civil action for the principal amount of the com-missions owed and for an additional sum up to three times the amount of commissions and for reasonable attorney’s fees and court costs. A principal who is not a resident of the commonwealth and who enters into a contract subject to the provisions of sections seven to nine shall be deemed to be doing business in the commonwealth for purposes of the exercise of personal jurisdiction over such principal. No provision of sections seven to nine may be waived, whether by express waiver or by an attempt to make a contract or agreement subject to the laws of another jurisdiction. A waiver of any provision of sections seven to nine shall be void.
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Minnesota Sales Representative
Posted: March 17, 2013 Filed under: Minnesota | Tags: Commission (remuneration), IC, Independent Sales Rep, Minnesota, Payment, Rep, Sales, Wage Leave a commentLABOR, INDUSTRY
CHAPTER 181. EMPLOYMENT
PAYMENT OF WAGES
GO TO MINNESOTA STATUTES ARCHIVE DIRECTORY
Minn. Stat. § 181.13 (2012)
181.13 PENALTY FOR FAILURE TO PAY WAGES PROMPTLY
(a) When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee’s earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee’s average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made. In the case of a public employer where approval of expenditures by a governing board is required, the 24-hour period for payment does not commence until the date of the first regular or special meeting of the governing board following discharge of the employee.
(b) The wages and commissions must be paid at the usual place of payment unless the employee requests that the wages and commissions be sent through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions are paid as of the date of their postmark.
181.14 PAYMENT TO EMPLOYEES WHO QUIT OR RESIGN; SETTLEMENT OF DISPUTES
Subdivision 1. Prompt payment required.
(a) When any such employee quits or resigns employment, the wages or commissions earned and unpaid at the time the employee quits or resigns shall be paid in full not later than the first regularly scheduled payday following the employee’s final day of employment, unless an employee is subject to a collective bargaining agreement with a different provision. If the first regularly scheduled payday is less than five calendar days following the employee’s final day of employment, full payment may be delayed until the second regularly scheduled payday but shall not exceed a total of 20 calendar days following the employee’s final day of employment.
(b) Notwithstanding the provisions of paragraph (a), in the case of migrant workers, as defined in section 181.85, the wages or commissions earned and unpaid at the time the employee quits or resigns shall become due and payable within five days thereafter.
Subd. 2. Nonprompt payment. –Wages or commissions not paid within the required time period shall become immediately payable upon the demand of the employee. If the employee’s earned wages or commissions are not paid within 24 hours after the demand, the employer shall be liable to the employee for an additional sum equal to the amount of the employee’s average daily earnings provided in the contract of employment, for every day, not exceeding 15 days in all, until such payment or other settlement satisfactory to the employee is made.
Subd. 3. Settlement of disputes. –If the employer disputes the amount of wages or commissions claimed by the employee under the provisions of this section or section 181.13, and the employer makes a legal tender of the amount which the employer in good faith claims to be due, the employer shall not be liable for any sum greater than the amount so tendered and interest thereon at the legal rate, unless, in an action brought in a court having jurisdiction, the employee recovers a greater sum than the amount so tendered with interest thereon; and if, in the suit, the employee fails to recover a greater sum than that so tendered, with interest, the employee shall pay the cost of the suit, otherwise the cost shall be paid by the employer.
Subd. 4. Employees entrusted with money or property. –In cases where the discharged or quitting employee was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer shall have ten calendar days after the termination of the employment to audit and adjust the accounts of the employee before the employee’s wages or commissions shall be paid as provided in this section, and the penalty herein provided shall apply in such case only from the date of demand made after the expiration of the period allowed for payment of the employee’s wages or commissions. If, upon such audit and adjustment of the accounts of the employee, it is found that any money or property entrusted to the employee by the employer has not been properly accounted for or paid over to the employer, as provided by the terms of the contract of employment, the employee shall not be entitled to the benefit of sections 181.13 to 181.171, but the claim for unpaid wages or commissions of such employee, if any, shall be disposed of as provided by existing law.
Subd. 5. Place of payment. –Wages and commissions paid under this section shall be paid at the usual place of payment unless the employee requests that the wages and commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
181.145 PROMPT PAYMENT OF COMMISSIONS TO COMMISSION SALESPEOPLE
Subdivision 1. Definitions. –For the purposes of this section, “commission salesperson” means a person who is paid on the basis of commissions for sales and who is not covered by sections 181.13 and 181.14 because the person is an independent contractor. For the purposes of this section, the phrase “commissions earned through the last day of employment” means commissions due for services or merchandise which have actually been delivered to and accepted by the customer by the final day of the salesperson’s employment.
Subd. 2. Prompt payment required.
(a) When any person, firm, company, association, or corporation employing a commission salesperson in this state terminates the salesperson, or when the salesperson resigns that position, the employer shall promptly pay the salesperson, at the usual place of payment, commissions earned through the last day of employment or be liable to the salesperson for the penalty provided under subdivision 3 in addition to any earned commissions unless the employee requests that the commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s commissions are sent to the employee through the mail, the commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
(b) If the employer terminates the salesperson or if the salesperson resigns giving at least five days’ written notice, the employer shall pay the salesperson’s commissions earned through the last day of employment on demand no later than three working days after the salesperson’s last day of work.
(c) If the salesperson resigns without giving at least five days’ written notice, the employer shall pay the sales-person’s commissions earned through the last day of employment on demand no later than six working days after the salesperson’s last day of work.
(d) Notwithstanding the provisions of paragraphs (b) and (c), if the terminated or resigning salesperson was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer has ten working days after the termination of employment to audit and adjust the accounts of the salesperson before the salesperson can demand commissions earned through the last day of employment. In such cases, the penalty provided in subdivision 3 shall apply only from the date of demand made after the expiration of the ten working day audit period.
Subd. 3. Penalty for nonprompt payment. –If the employer fails to pay the salesperson commissions earned through the last day of employment on demand within the applicable period as provided under subdivision 2, the employer shall be liable to the salesperson, in addition to earned commissions, for a penalty for each day, not exceeding 15 days, which the employer is late in making full payment or satisfactory settlement to the salesperson for the commissions earned through the last day of employment. The daily penalty shall be in an amount equal to 1/15 of the salesperson’s commissions earned through the last day of employment which are still unpaid at the time that the penalty will be assessed.
Subd. 4. Amount of commission disputed.
(a) When there is a dispute concerning the amount of the salesperson’s commissions earned through the last day of employment or whether the employer has properly audited and adjusted the salesperson’s account, the penalty provided in subdivision 3 shall not apply if the employer pays the amount it in good faith believes is owed the salesperson for commissions earned through the last day of employment within the applicable period as provided under subdivision 2; except that, if the dispute is later adjudicated and it is determined that the salesperson’s commissions earned through the last day of employment were greater than the amount paid by the employer, the penalty provided in subdivision 3 shall apply.
(b) If a dispute under this subdivision is later adjudicated and it is determined that the salesperson was not promptly paid commissions earned through the last day of employment as provided under subdivision 2, the employer shall pay reasonable attorney’s fees incurred by the salesperson.
Subd. 5. Commissions earned after last day of employment. –Nothing in this section shall be construed to impair a commission salesperson from collecting commissions on merchandise ordered prior to the last day of employment but delivered and accepted after termination of employment. However, the penalties prescribed in subdivision 3 apply only with respect to the payment of commissions earned through the last day of employment.
181.171 COURT ACTIONS; PRIVATE PARTY CIVIL ACTIONS
Subdivision 1. Civil action; damages. –A person may bring a civil action seeking redress for violations of sections 181.02, 181.03, 181.031, 181.032, 181.08, 181.09, 181.10, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, and 181.15 directly to district court. An employer who is found to have violated the above sections is liable to the aggrieved party for the civil penalties or damages provided for in the section violated. An employer who is found to have violated the above sections shall also be liable for compensatory damages and other appropriate relief including but not limited to injunctive relief.
Subd. 2. District court jurisdiction. –An action brought under subdivision 1 may be filed in the district court of the county wherein a violation is alleged to have been committed, where the respondent resides or has a principal place of business, or any other court of competent jurisdiction.
Subd. 3. Attorney fees and costs. –In an action brought under subdivision 1, the court shall order an employer who is found to have committed a violation to pay to the aggrieved party reasonable costs, disbursements, witness fees, and attorney fees.
Subd. 4. Employer; definition. –“Employer” means any person having one or more employees in Minnesota and includes the state and any political subdivision of the state. This definition applies to this section and sections 181.02, 181.03, 181.031, 181.032, 181.06, 181.063, 181.10, 181.101, 181.13, 181.14, and 181.16.
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Michigan Sales Representative
Posted: March 17, 2013 Filed under: Michigan | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Manufacture, Michigan, Rep, Sales Leave a commentMICHIGAN COMPILED LAWS SERVICE
CHAPTER 600 REVISED JUDICATURE ACT OF 1961
REVISED JUDICATURE ACT OF 1961
CHAPTER 29. PROVISIONS CONCERNING SPECIFIC ACTIONS
Go to the Michigan Code Archive Directory
MCLS § 600.2961 (2012)
MCL § 600.2961
§ 600.2961. Definitions; determining when commission due; payment of commissions; liability; attorney fees and costs; jurisdiction; contract waiver void; applicability of section.
Sec. 2961. (1) As used in this section:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a percentage of the dollar amount of profits.
(b) “Person” means an individual, corporation, partnership, association, governmental entity, or any other legal entity.
(c) “Prevailing party” means a party who wins on all the allegations of the complaint or on all of the responses to the complaint.
(d) “Principal” means a person that does either of the following:
(i) Manufactures, produces, imports, sells, or distributes a product in this state.
(ii) Contracts with a sales representative to solicit orders for or sell a product in this state.
(e) “Sales representative” means a person who contracts with or is employed by a principal for the solicitation of orders or sale of goods and is paid, in whole or in part, by commission. Sales representative does not include a person who places an order or sale for a product on his or her own account for resale by that sales representative.
(2) The terms of the contract between the principal and sales representative shall determine when a commission becomes due.
(3) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control or, if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties.
(4) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within 45 days after the date of termination. Commissions that become due after the termination date shall be paid within 45 days after the date on which the commission became due.
(5) A principal who fails to comply with this section is liable to the sales representative for both of the following:
(a) Actual damages caused by the failure to pay the commissions when due.
(b) If the principal is found to have intentionally failed to pay the commission when due, an amount equal to 2 times the amount of commissions due but not paid as required by this section or $100,000.00, whichever is less.
(6) If a sales representative brings a cause of action pursuant to this section, the court shall award to the prevailing party reasonable attorney fees and court costs.
(7) In an action brought under this section, jurisdiction shall be determined in accordance with chapter 7.
(8) A provision in a contract between a principal and a sales representative purporting to waive any right under this section is void.
(9) This section does not affect the rights of a principal or sales representative that are otherwise provided by law.
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Missouri Sales Representative
Posted: March 17, 2013 Filed under: Missouri | Tags: Contract, IC, Independent Sales Rep, Manufacture, Missouri, Rep, Sales Leave a commentTITLE 26. TRADE AND COMMERCE (Chs. 400-421)
CHAPTER 407. MERCHANDISING PRACTICES
SALES COMMISSION
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
§ 407.911 R.S.Mo. (2013)
§ 407.911. Definitions
As used in sections 407.911 to 407.915, the following terms mean:
(1) “Commission”, compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales, or as a specified amount per order or per sale;
(2) “Principal”, a person, firm, corporation, partnership or other business entity, whether or not it has a permanent or fixed place of business in this state, and who:
(a) Manufactures, produces, imports, provides, or distributes a product or service for sale;
(b) Contracts with a sales representative to solicit orders for the product or service; and
(c) Compensates the sales representative, in whole or in part, by commission;
(3) “Sales representative”, a person, firm, corporation, partnership, or other business entity who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include a person, firm, corporation, partnership, or other business entity who places orders or purchases for its own account for resale.
§ 407.912. Commission to become due, when — termination of employment, all commissions due, when
1. When a commission becomes due shall be determined in the following manner:
(1) The written terms of the contract between the principal and sales representative shall control;
(2) If there is no written contract, or if the terms of the written contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the commission shall be paid when the product or service is delivered and accepted by the purchaser or the principal receives satisfaction in full;
(3) If neither subdivision (1) nor (2) of this subsection can be used to clearly ascertain when the commission becomes due, then the commission shall be due on the date the principal accepts the order and receives satisfaction in full, unless the custom and usage prevalent in this state for the parties’ particular industry is different, in which event such custom and usage shall prevail.
2. Nothing in sections 407.911 to 407.915 shall be construed to impair a sales representative from collecting commissions on products or services ordered prior to the termination of the contract between the principal and the sales representative but delivered and accepted by the purchaser after such termination.
3. When the contract between a sales representative and a principal is terminated, all commissions then due shall be paid within thirty days of such termination. Any and all commissions which become due after the date of such termination shall be paid within thirty days of becoming due.
§ 407.913. Failure to pay sales representative commission, liability in civil action for actual damages — additional damages allowed — attorney fees and costs
Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment. In addition the court may award reasonable attorney’s fees and costs to the prevailing party.
§ 407.914. Out-of-state principal with sales representative soliciting in this state, Missouri courts to have jurisdiction
A principal who is not a resident or citizen of this state who contracts with a sales representative to solicit orders in this state is declared to be transacting business in this state for purposes of the exercise of jurisdiction of the courts of this state under section 506.500.
§ 407.915. Civil action for all claims against principal may be joined–express or contract waivers of commission laws, invalid
1. Nothing in sections 407.911 to 407.915 shall invalidate or restrict any other or additional right or remedy available to a sales representative from seeking to recover in one action on all claims against a principal.
2. A provision in any contract between a sales representative and a principal purporting to waive any provision of sections 407.911 to 407.915, whether by expressed waiver or by a contract subject to the laws of another state, shall be void.
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New Hampshire Sales Representative
Posted: March 17, 2013 Filed under: New Hampshire | Tags: Commission (remuneration), Contract, IC, Independent Sales Rep, Rep, Sales, STATUTES Leave a commentNEW HAMPSHIRE REVISED STATUTES ANNOTATED
TITLE XXXI Trade And Commerce
CHAPTER 339-E Sales Representatives and Post-Termination Commissions
GO TO NEW HAMPSHIRE STATUTES ARCHIVE DIRECTORY
RSA 339-E:1 (2012)
339-E:1 Definitions.
In this chapter:
1. “Commission” means compensation paid a sales representative by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales of the principal’s product.
2. “Principal” means a person who manufactures, produces, imports or distributes a product for sale to customers who purchase the product for resale; uses a sales representative to solicit orders for such product; and compensates individuals who solicit orders, in whole or in part, by commission.
3. “Sales representative” means an individual other than an employee, who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission but shall not include one who places orders or pur-chases exclusively for his own account for resale.
4. “Termination” means the end of services performed by the sales representative for the principal by discharge, resignation, or death.
339-E:2 Contract.
A sales representative and a principal shall enter into a written contract for services to be performed within this state by a sales representative. The written contract entered into pursuant to this section shall contain provisions which establish:
The form of payment and the method by which such payment is to be computed and paid;
Reasonable length of notice which either party must provide to the other for termination of the contract;
The number of calendar days, up to a maximum of 45 days, after the date of termination or notification of death when all commissions due shall be paid; and
Any other terms and conditions which the parties agree to include in such contract.
The principal shall provide the sales representative a signed copy of a written contract entered into pursuant to this section.
A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.
339-E:3 Damages.
The party who fails to comply with a provision of a contract entered into under RSA 339-E:2 relating to payment of a commission is liable in a civil action for damages, plus reasonable attorney’s fees and costs. The court may award exemplary damages of up to 3 times the commission owed in an action brought under this chapter.
339-E:4 Jurisdiction.
A principal who is not a resident of this state who enters into a contract with a sales representative subject to this chapter shall be considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
339-E:5 Other Remedies; Combination of Claims.
Nothing in this chapter shall invalidate or restrict any other or additional right or remedy available to a sales representative, or preclude a sales representative from seeking to recover in one action on all claims against a principal.
339-E:6 No Waivers by Contract.
A provision in any contract between a sales representative and a principal purporting to waive any provision of this chapter, whether by expressed waiver or by a contract subject to the laws of another state, shall be void.
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New Jersey Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: IC, Independent Sales Rep, JERSEY, Rep Leave a commentTITLE 2A. ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE
SUBTITLE 6. SPECIFIC CIVIL ACTIONS
CHAPTER 61A. SALES REPRESENTATIVES; SALES ON COMMISSION
GO TO THE NEW JERSEY ANNOTATED STATUTES ARCHIVE DIRECTORY
N.J. Stat. § 2A:61A-1 (2013)
§ 2A:61A-1. Definitions
As used in this act:
a. “Commission” means compensation accruing to a sales representative for payment by a principal, earned through the last day on which services were performed by the sales representative, the rate of which is expressed as a percentage of the dollar amount of orders or sales or as a specified amount per order or per sale.
b. “Principal” means a person, including a person who does not have a permanent or fixed place of business in this State, who manufactures, produces, imports or distributes a product or offers a service; contracts with an independent sales company or other person to solicit orders for the product or service; and compensates those companies or other persons who solicit orders, in whole or in part, by commission.
c. “Sales representative” means an independent sales company or other person, other than an employee, who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission but shall not include one who places orders or purchases exclusively for his own account for resale.
d. “Day” means a calendar day including Saturdays, Sundays and legal holidays.
e. “Termination” means the end of services performed by the sales representative for the principal by any means.
f. (Deleted by amendment, P.L.2007, c.289.)
§ 2A:61A-2. Payment to sales representative after termination of contract
When a contract between a principal and a sales representative to solicit orders is terminated, the commissions and other compensation earned as a result of the representative relationship and unpaid shall become due and payable within 30 days of the date the contract is terminated or within 30 days of the date commissions are due, whichever is later.
A sales representative shall receive commissions on goods ordered up to and including the last day of the contract even if accepted by the principal, delivered, and paid for after the end of the agreement. The commissions shall become due and payable within 30 days after payment would have been due under the contract if the contract had not been terminated.
§ 2A:61A-3. Liability to sales representative for violation; liability for frivolous court action
a. A principal who violates or fails to comply with the provisions of section 2 [C.2A:61A-2] of this act shall be liable to the sales representative for all amounts due the sales representative, exemplary damages in an amount of three times the amount of commissions owed to the sales representative and all attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.
b. Where the court determines that an action brought by a sales representative against a principal pursuant to this section is frivolous, pursuant to P.L.1988, c.46 (C.2A:15-59.1), the sales representative shall be liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
§ 2A:61A-4. Payment as of postmark date
The commissions and other compensation shall be paid at the usual place of payment unless the sales representative requests that the commissions and other compensation be sent through first class mail. If, in accordance with a request by the sales representative, the sales representative’s commissions and other compensation are sent through the mail, the commissions and compensation shall be deemed to have been paid as of the date of their registered postmark.
§ 2A:61A-5. Jurisdiction over nonresident principals
A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State is declared to be doing business in this State for purposes of the exercise of personal jurisdiction.
§ 2A:61A-6. Waiving provisions of this act prohibited
A provision in any contract between a sales representative and a principal purporting to waive any provision of this act, whether by express waiver or by a provision stipulating that the contract is subject to the laws of another state, shall be void.
§ 2A:61A-7. Construction
Nothing in this act shall invalidate or restrict any other or additional right or remedy available to a sales representative or principal, or preclude a sales representative from seeking to recover in one action on all claims against a principal, or preclude a principal from seeking to recover in one action on all claims against a sales representative.
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New York Sales Representative
Posted: March 17, 2013 Filed under: New York | Tags: Employment, IC, Independent Sales Rep, Labour law, New York, New York City, Rep, Wage Leave a commentNEW YORK CONSOLIDATED LAW SERVICE
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LABOR LAW
ARTICLE 6. PAYMENT OF WAGES
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NY CLS Labor § 190 (2013)
§ 190. [n1] [n1]Definitions
As used in this article:
1. “Wages” means the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.
2. “Employee” means any person employed for hire by an employer in any employment.
3. “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency.
4. “Manual worker” means a mechanic, workingman or laborer.
5. “Railroad worker” means any person employed by an employer who operates a steam, electric or diesel surface railroad or is engaged in the sleeping car business. The term “railroad worker” shall not include a person employed in an executive capacity.
6. “Commission salesman” means any employee whose principal 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” does not include an employee whose principal activity is of a supervisory, managerial, executive or administrative nature.
7. “Clerical and other worker” includes all employees not included in subdivisions four, five and six of this section, except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of [fig 1] nine hundred dollars a week.
8. “Week” means a calendar week or a regularly established payroll week. “Month” means a calendar month or a regularly established fiscal month.
9. “Non-profitmaking organization” means a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.
§ 191. Frequency of payments
1. Every employer shall pay wages in accordance with the following provisions:
a. Manual worker.–
(i) A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned; provided however that a manual worker employed by an employer authorized by the commissioner pursuant to subparagraph (ii) of this paragraph or by a non-profitmaking organization shall be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.
(ii) The commissioner may authorize an employer which has in the three years preceding the application em-ployed an average of one thousand or more persons in this state or has for one year preceding the application employed an average of one thousand or more persons in this state and has for three years preceding the application employed an average of three thousand or more persons outside the state to pay less frequently than weekly but not less frequently than semi-monthly if the employer furnishes satisfactory proof to the commissioner of its continuing ability to meet its payroll responsibilities. In making this determination the commissioner shall consider the following: (A) the employer’s history meeting its payroll responsibilities in New York state or if no such history in New York state is available, other financial information, as requested by the commissioner, which will assist the commissioner in determining the likelihood of the employer’s continuing ability to meet payroll responsibilities; (B) proof of the employer’s coverage for workers’ compensation and disability; (C) proof that there are no outstanding warrants of the department of taxation and finance or the department of labor against the employer for failure to remit state personal income tax withholdings or unemployment insurance contributions; and (D) proof that the employer has a computerized record keeping system for payroll which, at a minimum, specifies hours worked, rate of pay, gross wages, deductions and date of pay for each employee. If the employers’ manual workers are represented by a labor organization, the commissioner shall not grant an employer’s application for authorization under this subparagraph unless that labor organization consents thereto.
Upon notice to the employer and an opportunity to be heard, the commissioner may rescind such authorization whenever the commissioner has determined, based upon the factors enumerated above, that the employer is no longer able to meet its payroll responsibilities as previously authorized.
b. Railroad worker.-A railroad worker shall be paid on or before Thursday of each week the wages earned during the seven-day period ending on Tuesday of the preceding week; and provided further that at the written request and notification of address by any employee, every railroad corporation, with the exception of those commuter railroads under the jurisdiction of the metropolitan transportation authority, shall mail every check for wages of such employee via the United States postal service, first class mail.
c. Commission [fig 1] salespersons.–A commission [fig 2] salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, 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 [fig 3] salesperson, upon written request, a statement of earnings 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 salesperson has presented are the agreed terms of employment.
d. Clerical and other worker.–A clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.
2. No employee shall be required as a condition of employment to accept wages at periods other than as provided in this section.
3. If employment is terminated, the employer shall pay the wages not later than the regular pay day for the pay period during which the termination occurred, as established in accordance with the provisions of this section. If requested by the employee, such wages shall be paid by mail.
§ 191-a. Definitions
For purposes of this article the term:
(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of wholesale orders or sales.
(b) “Earned commission” means a commission due for services or merchandise which is due according to the terms of an applicable contract or, when there is no applicable contractual provision, a commission due for merchandise which has actually been delivered to, accepted by, and paid for by the customer, notwithstanding that the sales representative’s services may have terminated.
(c) “Principal” means a person or company engaged in the business of manufacturing, and who:
(1) Manufactures, produces, imports, or distributes a product for wholesale;
(2) Contracts with a sales representative to solicit orders for the product; and
(3) Compensates the sales representative in whole or in part by commissions.
(d) “Sales representative” means a person or entity who solicits orders in New York state and is not covered by subdivision six of section one hundred ninety and paragraph (c) of subdivision one of section one hundred ninety-one of this article because he or she is an independent contractor, but does not include one who places orders for his own account for resale.
§ 191-b. Contracts with sales representatives
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.
2. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.
3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned.
§ 191-c. Payment of sales commission
1. When a contract between a principal and a sales representative is terminated, all earned commissions shall be paid within five business days after termination or within five business days after they become due in the case of earned commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him or her through the mails. If the commissions are sent to the sales representative by mail, the earned commissions shall be deemed to have been paid as of the date of their postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section concerning timely payment of all earned commissions shall be liable to the sales representative in a civil action for double damages. The prevailing party in any such action shall be entitled to an award of reasonable attorney’s fees, court costs, and disbursements.
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North Carolina Sales Representative
Posted: March 17, 2013 Filed under: North Carolina | Tags: Commission (remuneration), IC, Independent Sales Rep, North Carolina, Rep, STATUTES Leave a commentGeneral Statutes of North Carolina
CHAPTER 66. COMMERCE AND BUSINESS
ARTICLE 27. SALES REPRESENTATIVE COMMISSIONS
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§ 66-190. Definitions
The following definitions apply in this Article:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders, sales, or profits or as a specified amount per order or per sale.
(2) “Person” means an individual, corporation, limited liability company, partnership, unincorporated association, estate, trust, or other entity.
(3) “Principal” means a person who:
a. Manufactures, produces, imports, or distributes a product or service;
b. Contracts with a sales representative to solicit orders for the product or service; and
c. Compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who:
a. Contracts with a principal to solicit orders for products or services;
b. Is compensated, in whole or in part, by commission;
c. Is not a seller who complies with:
1. G.S. 25A-39 and G.S. 25A-40; or
2. Part 429 of 16 Code of Federal Regulations (January 1, 2003);
d. Repealed by Session Laws 2003-331, s. 1, effective October 1, 2003.
e. Is not an employee of the principal;
f. Does not sell or take orders for the sale of advertising services; and
g. Is not a person requiring a real estate broker’s or sales agent’s license under Chapter 93A of the General Statutes.
(5) “Terminate” and “termination” mean the end of the business relationship between the sales representative and the principal, whether by agreement, by expiration of time, or by exercise of a right of termination of either party.
§ 66-191. Payment of commissions; termination.
When a contract between a sales representative and a principal is terminated for any reason other than malfeasance on the part of the sales representative, the principal shall pay the sales representative all commissions due under the contract within 30 days after the effective date of the termination and all commissions that become due after the effective date of termination within 15 days after they become due. If the principal does not make payment as required by this section, the sales representative shall make a written demand upon the principal, sent by certified mail, for the commissions then due. The principal shall respond in writing to the demand within 15 days after the principal receives the written demand.
§ 66-192.1. Revocable offers of commission; entitlement
If a principal makes a revocable offer of a commission to a sales representative, the sales representative is entitled to the commission agreed upon if:
(1) The principal revokes the offer of commission;
(2) The sales representative establishes that the revocation was for the purpose of avoiding payment of the commission;
(3) The revocation occurs after the principal has obtained a written order for the principal’s product or service because of the efforts of the sales representative; and
(4) The principal’s product or service that is the subject of the order is provided to and paid for by a customer.
§ 66-190.1. Written contracts
The agreement or contract between a sales representative and a principal shall be in writing. The absence of a written agreement or contract shall not bar a cause of action by, or any remedy available to, a party.
§ 66-192. Civil liability
(a) A principal who fails to comply with the provisions of G.S. 66-191 or is shown to have wrongfully revoked an offer of commission under G.S. 66-192.1 is liable to the sales representative in a civil action for (i) all amounts due the sales representative plus exemplary damages in an amount not to exceed two times the amount of commissions due the sales representative, (ii) attorney’s fees actually and reasonably incurred by the sales representative in the action, and (iii) court costs.
(b) Where the court determines that an action brought by a sales representative against a principal under this Article is frivolous, the sales representative is liable to the principal for court costs and for attorney’s fees actually and reasonably incurred by the principal in defending the action.
(c) A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State shall be subject to personal jurisdiction as provided in G.S. 1-75.4.
(d) Nothing in this Article shall invalidate or restrict any other or additional right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
§ 66-193. Contracts void
A provision in any contract between a sales representative and a principal purporting to waive any provision of this Article, whether by expressed waiver or by a contract subject to the laws of another state, is void.
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Oklahoma Sales Representative
Posted: March 17, 2013 Filed under: Oklahoma | Tags: Contract, IC, Independent Sales Rep, Oklahoma, Rep, STATUTES Leave a commentOKLAHOMA STATUTES, ANNOTATED BY LEXISNEXIS ®
TITLE 15. CONTRACTS
CHAPTER 17A. SALES REPRESENTATIVES RECOGNITION ACT
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15 Okl. St. § 675 (2012)
§ 675. Short title
Sections 1 through 5 of this act shall be known and may be cited as the “Sales Representatives Recognition Act”.
§ 676. Definitions
As used in the Sales Representatives Recognition Act:
1. “Commission” means compensation accruing to a person for payment by another person, the rate of which is expressed as a percentage of the dollar amount of orders, sales or profits;
2. “Principal” means any person who does not have a permanent or fixed place of business in this state and who does all of the following:
a. Engages in the business of manufacturing, producing, importing or distributing one or more products for sale to customers who purchase products for resale,
b. Utilizes one or more sales representatives to solicit wholesale orders for those products, and
c. Compensates the sales representatives in whole or in part by commission; and
3. “Sales representative” means a person who contracts with a principal to solicit wholesale orders for a product within this state and who is compensated, in whole or in part, by commission. “Sales representative” does not include a person who places orders for or purchases the product for his own account for resale, a person who is an employee of a principal, or a person who sells the product to the ultimate consumer.
§ 677. Commission—Time when due
For purposes of the Sales Representatives Recognition Act, the time at which a commission is due to a sales representative shall be determined in the following manner:
1. If the contract between the principal and the sales representative is in writing and its terms unambiguously and clearly specify when the commission is due, the terms of the contract shall control the determination;
2. If the contract between the principal and the sales representative is not in writing, or if the contract between them is in writing but its terms do not specify when the commission is due or its terms are ambiguous or unclear, the past practice used by the principal and the sales representative shall control the determination; or
3. If neither paragraph 1 or 2 of this section can be used to clearly ascertain when a commission is due, the custom and usage prevalent in this state for the industry of the principal and sales representative shall control the determination.
§ 678. Termination of contract—Payment of commission—Attorney’s fees and court costs
A. If a contract between a principal and a sales representative for the solicitation of wholesale orders is terminated, the principal shall pay the sales representative all commissions due him at the time of the termination within fourteen (14) calendar days of the termination, and shall pay the sales representative all commissions that become due after termination within fourteen (14) calendar days of the date on which the commissions become due.
B. The prevailing party in an action brought under this section is entitled to reasonable attorney’s fees and court costs.
§ 679. Principal—Personal jurisdiction—Waiver of provisions of Act—Availability of rights and remedies—Contracts affected
A. For purposes of the Sales Representatives Recognition Act, a person who enters into an agreement, as a principal, with a sales representative for the solicitation of orders in this state is transacting business in this state and therefore authorizes the exercise of personal jurisdiction over said principal by the court.
B. Any provision in any contract between a sales representative and principal purporting to waive any of the provisions of the Sales Representatives Recognition Act is void.
C. Nothing in the Sales Representatives Recognition Act invalidates or restricts any other or additional right or remedy available to a sales representative, or precludes a sales representative from seeking to recover in one action on all claims against a principal.
D. The provisions of the Sales Representatives Recognition Act shall have no effect on any contract or agreement entered into prior to November 1, 1989.
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Pennsylvania Sales Representative
Posted: March 17, 2013 Filed under: Pennsylvania | Tags: IC, Independent Sales Rep, Pennsylvania, Rep Leave a commentPENNSYLVANIA STATUTES ANNOTATED
PENNSYLVANIA STATUTES
TITLE 43. LABOR
CHAPTER 27. COMMISSIONED SALES REPRESENTATIVES
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43 P.S. § 1471 (2012)
§ 1471. Definitions
The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“COMMISSION.” Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar of orders or sales.
“PRINCIPAL.” Any person who does all of the following:
(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.
(2) Utilizes sales representatives to solicit orders for such product.
(3) Compensates sales representatives, in whole or in part, by commission.
“SALES REPRESENTATIVE.” A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.
“TERMINATION.” The end of services performed by the sales representative for the principal. The term includes any action that concludes the relationship of the parties.
§ 1472. Contracts
(a) CONTENTS.—When a sales representative enters into an agreement with the principal for the solicitation of wholesale orders, a written contract shall be entered into setting forth the following:
(1) The form of payment and the method by which it is to be computed and made.
(2) A specified period for the performance of services.
(3) The manner and extent to which job-incurred expenses are to be reimbursed.
(4) A specified geographical territory or specified accounts.
(b) COPY OF CONTRACT.—The principal shall provide each sales representative with a signed copy of the con-tract.
§ 1473. Termination
A principal shall pay a sales representative all commission due at the time of termination within 14 days after termination.
§ 1474. Commissions on goods delivered after the end of the agreement
A principal shall pay a sales representative all commissions that become due after termination within 14 days of the date such commissions become due.
§ 1475. Noncompliance
(a) GENERAL.—A principal who willfully fails to comply with the provisions of section 3 or 4 shall be liable to the sales representative in a civil action for:
(1) All commissions due the sales representative, plus exemplary damages in an amount not to exceed two times the commissions due the sales representative.
(2) The cost of the suit, including reasonable attorney fees.
(b) FRIVOLOUS ACTIONS.—If judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney fees and court costs to the principal.
§ 1475.1. When commissions become due
(a) CONTRACT.—The terms of the contract, whether or not in writing, between the principal and sales representative shall determine when commissions become due.
(b) CUSTOM AND USAGE.—If the time when commissions become due cannot be determined by a contract between the principal and sales representative, the past practices of the parties shall control, or, if there are no past practices, the custom and usage prevalent in this Commonwealth for the business that is the subject of the relationship be-tween the parties shall control.
§ 1476. Construction of act
Nothing in this act shall invalidate or restrict any other or additional right or remedy available to sales representatives or preclude sales representatives from seeking to recover in one action on all claims against a principal. The provisions of this act may not be waived. In applying the provisions of this act, the courts of this Commonwealth shall not recognize any purported waiver of the provisions of this act, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state.
§ 1477. Applicability
The provisions of this act shall apply to existing contracts which can be terminated at will and to contracts entered into or renewed after the effective date of this act. Nothing contained in this section is intended to violate section 17 of Article I of the Constitution of Pennsylvania, relative to impairing the obligations of contracts.
§ 1478. Compliance with requirements for contracts
Within 180 days after the effective date of this act, all contracts described in section 7 shall comply with the provisions of section 2.
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South Carolina Sales Rep
Posted: March 17, 2013 Filed under: South Carolina | Tags: IC, Independent Sales Rep, Rep, South Carolina Leave a commentSOUTH CAROLINA CODE OF LAWS ANNOTATED BY LEXISNEXIS®
TITLE 39. TRADE AND COMMERCE
CHAPTER 65. PAYMENT OF POST-TERMINATION CLAIMS TO SALES REPRESENTATIVES
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§ 39-65-10. Definitions.
As used in this chapter:
(1) “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a specified amount of each order or sale.
(2) “Person” means an individual, corporation, partnership, association, estate, or trust.
(3) “Principal” means a person who:
(a) manufactures, produces, imports, or distributes a tangible product for wholesale;
(b) contracts with a sales representative to solicit orders for the product; and
(c) compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who:
(a) contracts with a principal to solicit wholesale orders;
(b) is compensated, in whole or in part, by commission;
(c) does not place orders or purchase for his own account or for resale; and
(d) does not sell or take orders for the sale of products to the ultimate consumer.
§ 39-65-20. Principal to pay commissions.
When a contract between a sales representative and a principal is terminated for any reason, the principal shall pay the sales representative all commissions that have or will accrue under the contract to the sales representative according to the terms of the contract.
§ 39-65-30. Principal’s civil liability.
A principal who fails to comply with the provisions of Section 39-65-20 is liable to the sales representative in a civil action for:
(1) all amounts due the sales representative plus punitive damages in an amount not to exceed three times the amount of commissions due the sales representative; and
(2) attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.
§ 39-65-40. Frivolous action; sales representative’s liability.
Where the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
§ 39-65-50. Nonresident principals subject to personal jurisdiction.
A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State is deemed to be doing business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Part 8, Chapter 2, Title 36.
§ 39-65-60. Effect of chapter on other rights and remedies.
Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative or precludes a sales representative from seeking to recover in one action on all claims against a principal.
§ 39-65-70. Effect of waiver of chapter provisions in contract.
A provision in any contract between a sales representative and a principal purporting to waive any provision of this chapter, whether by expressed waiver or by a contract subject to the laws of another state, is void.
§ 39-65-80. Restrictions on actions.
Any person bringing an action under the provisions of this chapter may not bring an action under the provisions of Section 41-10-10.
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Tennessee Sales Representative
Posted: March 17, 2013 Filed under: Tennessee | Tags: Contract, IC, Independent Sales Rep, Manufacture, Rep, Sales, STATUTES, Tennessee Leave a commentTENNESSEE CODE ANNOTATED
© 2013 by The State of Tennessee
All rights reserved
Title 47 Commercial Instruments And Transactions
Chapter 50 Miscellaneous Provisions
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Tenn. Code Ann. § 47-50-114 (2012)
47-50-114. Sales representatives—Commissions.
(a) As used in this section:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales;
(2) “Principal” means a person who:
(A) Manufactures, produces, imports, or distributes a product for wholesale;
(B) Contracts with a sales representative to solicit orders for the product; and
(C) Compensates the sales representative, in whole or in part, by commission;
(3) “Sales representative” means a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission, but does not include one who places orders or purchases for such person’s own account for resale; and
(4) “Termination” means the end of services performed by the sales representative for the principal whether by discharge, resignation, or expiration of a contract.
(b) (1) The terms of the contract between the principal and sales representative shall determine when a commission becomes due.
(2) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control or, if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties shall control.
(3) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within fourteen (14) days after the date of termination. Commissions that become due after the termination date shall be paid within fourteen (14) days after the date on which the commissions become due.
(c) When the contract between a sales representative and a principal is terminated and the contract was not reduced to writing, all commissions due shall be paid within fourteen (14) days of termination.
(d) A principal who, acting in bad faith, fails to comply with the provisions of subsection (c) concerning timely payment may be liable in a civil action for exemplary damages in an amount which does not exceed treble the amount of the commissions owed to the sales representative. Additionally, such principal shall pay the sales representative’s reasonable attorney’s fees and court costs. If the court determines that an action to collect such exemplary damages has been brought on frivolous grounds, reasonable attorney’s fees and court costs shall be awarded to the principal.
(e) A principal who is not a resident of this state and who enters into a contract subject to this chapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
(f) A provision of this chapter may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of this chapter is void.
(g) This chapter does not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one (1) action on all claims against a principal.
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Virginia Independent Sales Rep
Posted: March 17, 2013 Filed under: Virginia | Tags: Contract, IC, Independent, Independent Sales Rep, Rep, Sales, Virginia Leave a commentCODE OF VIRGINIA
TITLE 59.1. TRADE AND COMMERCE
CHAPTER 37. CONTRACTS; INDEPENDENT SALES REPRESENTATIVES
GO TO CODE OF VIRGINIA ARCHIVE DIRECTORY
Va. Code Ann. § 59.1-455 (2013)
§ 59.1-455. Definitions
As used in this chapter, unless the context requires a different meaning:
“Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the total dollar amount of orders or sales or as a specified amount per order or per sale.
“Principal” means a person who manufactures, produces, imports or distributes a product for wholesale and who contracts with a sales representative to solicit orders or sales for such product and compensates the sales representative, in whole or in part, by commission.
“Sales representative” means a person other than an employee who contracts with a principal to solicit wholesale orders or sales and who is compensated, in whole or in part, by commission, but shall not include a person who purchases exclusively for his own account for resale.
§ 59.1-456. Contracts between principals and sales representatives
When a principal contracts with a sales representative to solicit wholesale orders within this Commonwealth, such contract shall (i) be in writing, (ii) disclose the method by which the commission is to be computed and paid, (iii) disclose the territory of the sales representative and whether such territory is exclusive, (iv) be signed by the principal and the sales representative, and (v) be provided to the sales representative.
§ 59.1-457. Payment of sales commission
A. Every sales representative shall be paid the earned commission and all other compensation earned or payable in accordance with the terms of the contract.
B. When a contract between a principal and a sales representative is terminated, for any reason, except by mutual agreement, all earned commissions shall be paid within a period specified in the contract, but in no event shall such period exceed thirty days from the date of termination or, in the case of orders processed subsequent to termination, thirty days from shipment. Such commission and other compensation shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him through regular mail. If the commission is sent through regular mail, it is deemed to have been paid for purposes of this subsection on the date that it is postmarked.
§ 59.1-458. Waiver prohibited
Any provision of any agreement intending to waive the rights of any party to any provision of this chapter shall be void.
§ 59.1-459. Absence of contract not affirmative defense
The failure to execute a contract as required by § 59.1-456 shall not constitute an affirmative defense in any action relating to the provisions of this chapter.
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Washington Independent Sales Rep
Posted: March 17, 2013 Filed under: Washington | Tags: Commission (remuneration), IC, Independent Sales Rep, Manufacture, Manufacturing, Rep, Wage, Washington Leave a commentANNOTATED REVISED CODE OF WASHINGTON
TITLE 49. LABOR REGULATIONS
CHAPTER 49.48. WAGES—PAYMENT—COLLECTION
GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY
Rev. Code Wash. (ARCW) § 49.48.150 (2012)
§ 49.48.150. Sales representatives—Definitions
Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 49.48.160 through 49.48.190.
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.
(2) “Principal” means a person, whether or not the person has a permanent or fixed place of business in this state, who:
(a) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(b) Uses a sales representative to solicit orders for the product; and
(c) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product, but does not include a person who places orders for his or her own account for resale, or purchases for his or her own account for resale, or sells or takes orders for the direct sale of products to the ultimate consumer.
§ 49.48.160. Sales representatives—Contract—Agreement
(1) A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing and must set forth the method by which the sales representative’s commission is to be computed and paid. The principal shall provide the sales representative with a copy of the contract. A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.
(2) When no written contract has been entered into, any agreement between a sales representative and a principal is deemed to incorporate the provisions of RCW 49.48.150 through 49.48.190.
(3) During the course of the contract, a sales representative shall be paid the earned commission and all other moneys earned or payable in accordance with the agreed terms of the contract, but no later than thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative.
Upon termination of a contract, whether or not the agreement is in writing, all earned commissions due to the sales representative shall be paid within thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative, including earned commissions not due when the contract is terminated.
§ 49.48.170. Sales representatives—Payment
A principal shall pay wages and commissions at the usual place of payment unless the sales representative requests that the wages and commissions be sent through registered mail. If, in accordance with a request by the sales representative, the sales representative’s wages and commissions are sent through the mail, the wages and commissions are deemed to have been paid as of the date of their registered postmark.
§ 49.48.180. Sales representatives—Principal considered doing business in this state
A principal who is not a resident of this state and who enters into a contract subject to RCW 49.48.150 through 49.48.190 is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
§ 49.48.190. Sales representatives—Rights and remedies not exclusive—Waiver void
(1) RCW 49.48.150 through 49.48.190 supplement but do not supplant any other rights and remedies enjoyed by sales representatives.
(2) A provision of RCW 49.48.150 through 49.48.190 may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of RCW 49.48.150 through 49.48.190 is void.
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Wisconsin Sales Rep Statute
Posted: March 10, 2013 Filed under: Wisconsin | Tags: Business, Code of Iowa, Contract, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Sales, Wage, Wisconsin Leave a commentWisconsin Sales Rep Statute
REGULATION OF TRADE
CHAPTER 134. MISCELLANEOUS TRADE REGULATIONS
Wis. Stat. § 134.93 (2012)
134.93. Payment of commissions to independent sales representatives.
(1) DEFINITIONS.
In this section:
(a) “Commission” means compensation accruing to an independent sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales made by the independent sales representative or as a percentage of the dollar amount of profits generated by the independent sales representative.
(b) “Independent sales representative” means a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. “Independent sales representative” does not include any of the following:
1. A person who places orders or purchases products for the persons own account for resale.
2. A person who is an employee of the principal and whose wages must be paid as required under s. 109.03(3) “Principal” means a sole proprietorship, partnership, joint venture, corporation or other business entity, whether or not having a permanent or fixed place of business in this state, that does all of the following:
1. Manufactures, produces, imports or distributes a product for wholesale.
2. Contracts with an independent sales representative to solicit orders for the product.
3. Compensates the independent sales representative, in whole or in part, by commission.
(2) COMMISSIONS; WHEN DUE.
(a) Subject to pars. (b) and (c), a commission becomes due as provided in the contract between the principal and the independent sales representative.
(b) If there is no written contract between the principal and the independent sales representative, or if the written contract does not provide for when a commission becomes due, or if the written contract is ambiguous or unclear as to when a commission becomes due, a commission becomes due according to the past practice used by the principal and the independent sales representative.
(c) If it cannot be determined under par. (a) or (b) when a commission becomes due, a commission becomes due according to the custom and usage prevalent in this state for the particular industry of the principal and independent sales representative.
(3) NOTICE OF TERMINATION OR CHANGE IN CONTRACT.
Unless otherwise provided in a written contract between a principal and an independent sales representative, a principal shall provide an independent sales representative with at least 90 days prior written notice of any termination, cancellation, nonrenewal or substantial change in the competitive circumstances of the contract between the principal and the independent sales representative.
(4) COMMISSIONS DUE; PAYMENT ON TERMINATION OF CONTRACT.
A principal shall pay an independent sales representative all commissions that are due to the independent sales representative at the time of termination, cancellation or nonrenewal of the contract between the principal and the independent sales representative as required under sub. (2)
(5) CIVIL LIABILITY.
Any principal that violates sub. (2) by failing to pay a commission due to an independent sales representative as required under sub. (2) is liable to the independent sales representative for the amount of the commission due and for exemplary damages of not more than 200% of the amount of the commissions due. In addition, the principal shall pay to the independent sales representative, notwithstanding the limitations specified in s. 799.25 or 814.04, all actual costs, including reasonable actual attorney fees, incurred by the independent sales representative in bringing an action, obtaining a judgment and collecting on a judgment under this subsection.
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Alabama Sales Representative
Posted: March 10, 2013 Filed under: Uncategorized | Tags: Alabama, Business, Code of Iowa, Contract, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Sales, Wage Leave a commentMICHIE’S ALABAMA CODE ANNOTATED
TITLE 8 Commercial Law and Consumer Protection
CHAPTER 24 Sales Representative’s Commission Contracts
Go to the Alabama Code Archive Directory
Code of Ala. § 8-24-1 (2012)
§ 8-24-1. Definitions.
As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) Commission. Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of certain orders or sales.
(2) Principal. Any person who does all of the following:
a. Engages in the business of manufacturing, producing, importing, or distributing a product or products for sale to customers who purchase the product or products for resale.
b. Utilizes sales representatives to solicit orders for the product or products.
c. Compensates the sales representatives, in whole or in part, by commission.
(3) Sales representative. Any person who engages in the business of soliciting, on behalf of a principal, orders for the purchase at wholesale of the product or products of the principal, but does not include a person who places orders or purchases for his or her own account for resale, or a person engaged in home solicitation sales.
(4) Termination. The end of services performed by the sales representative for the principal, whether by discharge, resignation, or expiration of a contract.
§ 8-24-2. Sales representative’s commission contracts; commission due.
(a) The terms of the contract between the principal and sales representative shall determine when a commission is due.
(b) If the time when the commission is due cannot be determined by a contract between the principal and sales representative, the past practices between the parties shall control, or if there are no past practices, the custom and usage prevalent in this state for the business that is the subject of the relationship between the parties shall control.
(c) All commissions that are due at the time of termination of a contract between a sales representative and principal shall be paid within thirty days after the date of termination. Commissions that become due after the termination date shall be paid within thirty days after the date on which the commissions become due.
§ 8-24-3. Failure to pay commission; damages; attorney’s fees.
A principal who fails to pay a commission as required by Section 8-24-2 is liable to the sales representative in a civil action for three times the damages sustained by the sales representative plus reasonable attorney’s fees and court costs.
§ 8-24-4. Nonresident principal; personal jurisdiction.
A principal who is not a resident of this state and who enters into a contract subject to this chapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
§ 8-24-5. Waiver void; unrestricted rights or remedies.
(a) This chapter may not be waived, whether by express waiver or by any provision in a contract attempting to make the contract or agreement subject to the laws of another state. A waiver of any provision of this chapter is void.
(b) This chapter does not invalidate or restrict any other right or remedy available to a sales representative or preclude a sales representative from seeking to recover in one action on all claims against a principal.
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Arizona Sales Representative
Posted: March 10, 2013 Filed under: Arizona | Tags: Arizona, Business, Code of Iowa, Contract, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Sales, Wage Leave a commentARIZONA REVISED STATUTES
TITLE 44. TRADE AND COMMERCE
CHAPTER 11. REGULATIONS CONCERNING PARTICULAR BUSINESSES
ARTICLE 15. SALES REPRESENTATIVE CONTRACTS
Go to the Arizona Code Archive Directory
A.R.S. § 44-1798.01 (2012)
§ 44-1798.01. Sales representative contract
A. The sales representative and the principal shall enter into a written contract. The contract shall set forth the method by which the sales representative’s commission is to be computed and paid.
B. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.
§ 44-1798.02. Termination of sales representative contract; payment of earned commissions
A. If an agreement of services is terminated for any reason both of the following apply:
1. All the commissions due through the time of termination shall be paid to the sales representative within a period of not to exceed thirty days after termination.
2. All the commissions that become due after the effective date of termination shall be paid to the sales representative within fourteen days after they become due.
B. The principal shall pay the sales representative all commissions due while the business relationship is in effect in accordance with the agreement between the parties.
C. A principal who fails to comply with subsections A and B of this section is liable to the sales representative for damages in the amount of three times the sum of the unpaid commissions owed to the sales representative.
D. The prevailing party in an action brought under this section is entitled to the cost of the suit, including reasonable attorney fees.
E. Commissions shall be paid at the usual place of payment unless the sales representative requests that the com-missions be sent by registered mail. If, in accordance with a request by the sales representative, the sales representative’s commissions are sent by mail, the commissions are deemed to have been paid as of the date of the registered postmark on the envelope.
F. Unless payment is made pursuant to a binding and final written settlement agreement and release, the acceptance by a sales representative of a commission payment from the principal does not constitute a release as to the balance of any commissions claimed due. A full release of all commission claims that is required by a principal as a condition to a partial commission payment is null and void.
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Arkansas Sales Representative
Posted: March 10, 2013 Filed under: Uncategorized | Tags: Arkansas, Business, Code of Iowa, Contract, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Sales, Salesmanship, Wage Leave a commentArkansas Code of 1987 Annotated Official Edition
© 1987-2012 by the State of Arkansas
All rights reserved.
Title 4 Business and Commercial Law
Subtitle 6. Business Practices
Chapter 70 General Provisions
Subchapter 3 — Sales Representatives
A.C.A. § 4-70-306 (2012)
4-70-301. Definitions.
As used in this subchapter, unless the context otherwise requires:
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for, or sales of, the principal’s product;
(2) “Principal” means a person who:
(A) Does not have a permanent or fixed place of business in this state;
(B) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(C) Uses a sales representative to solicit orders for the product; and
(D) Compensates the sales representative in whole or in part by commission; and
(3) “Sales representative” means a person who solicits on behalf of a principal orders for the purchase at wholesale of the principal’s product. The term “sales representative” does not include a person who places orders for or purchases the product for his or her own account for resale, or is engaged in door-to-door sales regulated by § 4-89-101 et seq.
4-70-302. Sales representatives’ contracts — Limitation.
(a) A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing and set forth the method by which the sales representative’s commission is to be computed and paid.
(b) The principal shall provide the sales representative with a copy of the contract.
(c) A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.
4-70-303. Payment in absence of contract.
If a compensation agreement between a sales representative and a principal that is not in writing is terminated, the principal shall pay all commissions due the sales representative within thirty (30) working days after the date of the termination.
4-70-304. Jurisdiction.
A principal who is not a resident of this state and who enters into a contract subject to this subchapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
4-70-305. Waivers prohibited.
A provision of this subchapter may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of this subchapter is void.
4-70-306. Damages and attorney’s fees.
A principal who fails to comply with a provision of a contract under § 4-70-302 relating to payment of a commission or fails to pay a commission as required by § 4-70-303 is liable to the sales representative in a civil action for three (3) times the damages sustained by the sales representative, plus reasonable attorney’s fees and costs.
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Colorado Sales Rep
Posted: March 10, 2013 Filed under: Colorado | Tags: Business, Code of Iowa, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Wage Leave a commentColorado Revised Statutes
ARTICLE 66
WHOLESALE SALES REPRESENTATIVES
12-66-101. Legislative declaration.
The general assembly hereby finds, determines, and declares that independent wholesale sales representatives are a key ingredient to the Colorado economy. The general assembly further finds and declares that wholesale sales representatives spend many hours developing their territory in order to properly market their products. Therefore, it is the intent of the general assembly to provide security and clarify the relations between distributors, jobbers, or manufacturers and their wholesale sales representatives.
12-66-102. Jurisdiction over nonresident representatives
A distributor, jobber, or manufacturer who is not a resident of Colorado and who enters into any written contract or written sales agreement regulated by this article shall be deemed to be doing business in Colorado for purposes of personal jurisdiction.
12-66-103. Damages.
(1) A distributor, jobber, or manufacturer who knowingly fails to pay commissions as provided in any written contract or written sales agreement shall be liable to the wholesale sales representative in a civil action for treble the damages proved at trial.
(2) In a civil action brought by a wholesale sales representative pursuant to this section, the prevailing party shall be entitled to reasonable attorney fees and costs in addition to any other recovery.
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Illinois Sales Representative
Posted: March 10, 2013 Filed under: Illinois | Tags: Business, Code of Iowa, Employment, Illinois, Independent Contractor, Independent Rep, Manufacture, Rep, Sales, Wage Leave a commentILLINOIS COMPILED STATUTES ANNOTATED
CHAPTER 820. EMPLOYMENT
WAGES AND HOURS
SALES REPRESENTATIVE ACT
GO TO THE ILLINOIS STATUTES ARCHIVE DIRECTORY
820 ILCS 120/0.01 (2012)
[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 48, para. 2250]
§ 820 ILCS 120/0.01. Short title
Sec. 0.01. Short title. This Act may be cited as the Sales Representative Act.
§ 820 ILCS 120/1. [Terms defined]
Sec. 1. As used in this Act:
(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales or as a percentage of the dollar amount of profits.
(2) When a commission becomes due shall be determined in the following manner:
(A) The terms of the contract between the principal and salesperson shall control;
(B) If there is no contract, or if the terms of the contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the past practice used by the parties shall control;
(C) If neither (A) nor (B) can be used to clearly ascertain when the commission becomes due, the custom and usage prevalent in this State for the parties’ particular industry shall control.
(3) “Principal” means a sole proprietorship, partnership, corporation or other business entity whether or not it has a permanent or fixed place of business in this State and which:
(A) Manufactures, produces, imports, or distributes a product for sale;
(B) Contracts with a sales representative to solicit orders for the product; and
(C) Compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale or one who qualifies as an employee of the principal pursuant to the Illinois Wage Payment and Collection Act [820 ILCS 115/1 et seq.].
§ 820 ILCS 120/2. [Commissions due after termination of contract]
Sec. 2. All commissions due at the time of termination of a contract between a sales representative and principal shall be paid within 13 days of termination, and commissions that become due after termination shall be paid within 13 days of the date on which such commissions become due. Any provision in any contract between a sales representative and principal purporting to waive any of the provisions of this Act shall be void.
§ 820 ILCS 120/3. [Exemplary damages; payment of attorney’s fees and court costs]
Sec. 3. A principal who fails to comply with the provisions of Section 2 [820 ILCS 120/2] concerning timely payment or with any contractual provision concerning timely payment of commissions due upon the termination of the contract with the sales representative, shall be liable in a civil action for exemplary damages in an amount which does not exceed 3 times the amount of the commissions owed to the sales representative. Additionally, such principal shall pay the sales representative’s reasonable attorney’s fees and court costs.
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Indiana Sales Representative 24-4-7-0.1
Posted: March 10, 2013 Filed under: Indiana | Tags: Business, Code of Iowa, Employment, Independent Contractor, Independent Rep, Manufacture, Rep, Wage Leave a commentBURNS INDIANA STATUTES ANNOTATED
Title 24 Trade Regulations; Consumer Sales and Credit
Article 4 Regulated Businesses
Chapter 7 Contracts with Wholesale Sales Representatives
Go to the Indiana Code Archive Directory
Burns Ind. Code Ann. § 24-4-7-0.1 (2012)
24-4-7-0.1. Applicability of IC 24-4-7 to contracts formed before September 1, 1985.
The addition of this chapter by P.L.238-1985 does not apply to contracts formed before September 1, 1985.
24-4-7-1. “Commission” defined.
As used in this chapter, “commission” means compensation that accrues to a sales representative, for payment by a principal, at a rate expressed as a percentage of the dollar amount of orders taken or sales made by the sales representative.
24-4-7-2. “Person” defined.
As used in this chapter, “person” means an individual, corporation, limited liability company, partnership, unincorporated association, estate, or trust.
24-4-7-3. “Principal” defined.
As used in this chapter, “principal” means a person who:
(1) Manufactures, produces, imports, sells, or distributes a product for wholesale;
(2) Contracts with a sales representative to solicit wholesale orders for the product; and
(3) Compensates the sales representative, in whole or in part, by commission.
24-4-7-4. “Sales representative” defined.
As used in this chapter, “sales representative” means a person who:
(1) Contracts with a principal to solicit wholesale orders in Indiana; and
(2) Is compensated, in whole or in part, by commission.
The term does not include a person who places orders or purchases on the person’s own account for resale.
24-4-7-5. Payment of commissions following termination of contract — Civil action — Attorney’s fees.
(a) If a contract between a sales representative and a principal is terminated, the principal shall, within fourteen (14) days after payment would have been due under the contract if the contract had not been terminated, pay to the sales representative all commissions accrued under the contract.
(b) A principal who in bad faith fails to comply with subsection (a) shall be liable, in a civil action brought by the sales representative, for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.
(c) In a civil action under subsection (b), a principal against whom exemplary damages are awarded shall pay the sales representative’s reasonable attorney’s fees and court costs. However, if judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney’s fees and court costs to the principal.
24-4-7-6. Doing business in Indiana.
For purposes of Indiana trial rule 4.4, a principal who contracts with a sales representative to solicit wholesale orders for a product in Indiana is doing business in Indiana.
24-4-7-7. Revocable offer of commission.
(a) If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed upon if:
(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for a purpose of avoiding payment of the commission;
(2) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and
(3) the principal’s product that is the subject of the order is shipped to and paid for by a customer.
(b) This section may not be construed:
(1) to impair the application of IC 32-21-1 (statute of frauds);
(2) to abrogate any rule of agency law; or
(3) to unconstitutionally impair the obligations of contracts.
24-4-7-8. Waiver of statutory provision.
A provision in a contract between a sales representative and a principal that waives a provision of this chapter by:
(1) An express waiver; or
(2) A contract subject to the laws of another state; is void.
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Recreation Law 