One of the most remarkable aspects of our legal system is that — if a party loses — they almost always have the chance to go back and try again. Cases that are decided against a party can be appealed to higher courts. Sometimes those higher courts make their own decisions, and sometimes they refer cases back to lower courts for reconsideration. When a case is being appealed, organizations that are not involved in the case can file what is known as an amicus (Latin for (friend of the Court) brief to assist the Court in understanding and applying the law. This past week, Alan Schorr filed such a brief on behalf of the National Employment Lawyers’ Association of New Jersey. The brief was integral in explaining why New Jersey’s courts have been mistaken in excluding tiered and sliding scale commissions from the protections of New Jersey’s Wage Payment Law.

The case being appealed was originally filed by a commissioned saleswoman, Rosalyn Musker, against her employer, Suuchi, Inc. Ms. Musker had been a software salesperson, compensated through a combination of a base salary and a tiered commission structure. During the global pandemic, the company began selling Personal Protection Equipment and Ms. Musker sold $34,448,900 worth of products in March 2020 alone.

Based on the compensation structure in place at the time, Ms. Musker was due to receive $1,315,957.93 in commissions, but her company retroactively changed the commission structure, shorting her more than $1 million in compensation. She filed suit based on the protections offered by New Jersey’s Wage Protection Laws, but her case was dismissed based on previous courts’ having interpreted that law as excluding tiered or sliding scale commissions.

It is the position of the National Employment Lawyers’ Association of New Jersey that New Jersey Federal courts, State trial courts, and arbitrators have been misinterpreting the statute and denying NJWPL protection to commissioned salespeople, and that confusion will continue in the absence of any published New Jersey Appellate decision that clarifies the issue. The amicus brief was filed to assist the Appellate Court in understanding how wages are defined under other New Jersey statutes, the difference between incentives and tiered or sliding scale commissions, and the reason that it is
both illogical and against state policy to exclude commissioned salespeople from the protection of the New Jersey Wage Payment Law.

We eagerly await the Court’s decision.