142 A.3d 227 (Conn. 2016), SC 19545, Geysen v. Securitas Security Services USA, Inc.

Docket Nº:SC 19545
Citation:142 A.3d 227, 322 Conn. 385
Opinion Judge:ROGERS, C. J.
Party Name:KEVIN GEYSEN v. SECURITAS SECURITY SERVICES USA, INC
Attorney:Daniel J. Krisch, with whom, on the brief were George D. Royster and Logan A. Forsey, for the appellant-appellee (defendant). Todd D. Steigman, for the appellee-appellant (plaintiff).
Judge Panel:Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.[*]
Case Date:August 09, 2016
Court:Supreme Court of Connecticut
 
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Page 227

142 A.3d 227 (Conn. 2016)

322 Conn. 385

KEVIN GEYSEN

v.

SECURITAS SECURITY SERVICES USA, INC

SC 19545

Supreme Court of Connecticut

August 9, 2016

Argued March 28, 2016

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Action to recover damages pursuant to the wage collection statute for the defendant's alleged failure to pay earned sales commissions to the plaintiff after his employment had been terminated, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, Bear, J., granted the defendant's motion to strike two counts of the plaintiff's complaint and rendered partial judgment thereon; thereafter, the court, Wiese, J., denied the defendant's motion for summary judgment on the remaining count; subsequently, the court, Aurigemma, J., in accordance with the parties' stipulation, rendered a stipulated judgment for the plaintiff on the remaining count of the complaint, from which the defendant appealed and the plaintiff cross appealed.

Reversed in part; further proceedings.

SYLLABUS

The plaintiff employee sought damages for, inter alia, his defendant employer's failure to pay commissions the plaintiff allegedly had earned prior to the termination of his employment. The plaintiff worked as a manager for the defendant, marketing new and supplemental security services to prospective and existing customers, and his compensation was a weekly base salary and commissions on contracts he procured. The plaintiff was an at-will employee and pursuant to a provision of the defendant's sales incentive plan, commissions were paid to an employee only after work had been performed and invoiced to the client. The plaintiff worked for the defendant for approximately three years until his employment was terminated for alleged improper business activities. The plaintiff filed a three count complaint, alleging that the defendant's reasons for terminating his employment were false and a pretext for not having to pay commissions owed to the plaintiff. The trial court granted the defendant's motion to strike two counts of the plaintiff's complaint alleging, respectively, breach of the implied covenant of good faith and fair dealing, and wrongful discharge in violation of public policy, and rendered a partial judgment thereon in favor of the defendant. The parties then entered into a stipulation of facts agreeing that the plaintiff's claim depended upon whether the language of the commissions provision in the sales incentive plan was enforceable. The trial court thereafter determined that because the plaintiff's right to commissions was not contingent upon his providing any additional services to the defendant's customers, he had fully earned his commissions at the time his employment was terminated. The trial court concluded that the provision in the sales incentive plan deprived the plaintiff of those commissions, resulted in the forfeiture of wages, and applied to an employee who is terminated for no cause, and, therefore, that the provision was unenforceable because it violated the public policies that strongly favor the payment of wages and disfavor forfeitures. The parties subsequently stipulated to a judgment in favor of the plaintiff for unpaid commissions pursuant to § 31-72, but preserved their rights to appeal. From the stipulated judgment rendered thereon, the defendant appealed and the plaintiff cross appealed.

Held

:

1. The trial court improperly determined that the provision stating that commissions would be paid to the plaintiff only if the work had been invoiced prior to his termination violated public policy and was unenforceable; this court previously has determined that this state's wage payment statutes expressly leave the timing of accrual of wages to the agreement between the employer and the employee, and there was no violation of § 31-72 here because the plaintiff was not due his commissions under the express and enforceable terms of that agreement, as the condition precedent to their accrual that the commissionable amounts be invoiced was not satisfied.

2. The trial court improperly struck the count of the plaintiff's complaint alleging a breach of the implied covenant of good faith and fair dealing, this court having determined that, on the basis of the allegations in the complaint, which focused on damages he suffered due to the violation of his reasonable expectation regarding the payment of commissions, the plaintiff had stated a legally sufficient claim for breach of the covenant of good faith and fair dealing; although an employer may terminate an employee at will, the employer may not act in bad faith to prevent paying the employee commissions he reasonably expected to receive for services rendered under the employment contract, and any action or inaction that attempts to avoid the spirit of the bargain or that evinces a dishonest purpose violates the covenant of good faith and fair dealing as it relates to the contractual provision for payment of commissions.

3. The trial court properly struck the count of the plaintiff's complaint alleging wrongful termination in violation of public policy; this court having determined that the commission provision here was enforceable and did not violate the public policy embodied in § 31-72, the exercise of the defendant's at-will right to terminate the plaintiff did not violate the statutorily based public policy because an employee cannot use the nonpayment of wages that have not accrued as the basis for a wrongful discharge claim.

Daniel J. Krisch, with whom, on the brief were George D. Royster and Logan A. Forsey, for the appellant-appellee (defendant).

Todd D. Steigman, for the appellee-appellant (plaintiff).

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.[*]

OPINION

Page 231

[322 Conn. 387] ROGERS, C. J.

This consolidated appeal1 presents the question of whether an at-will employment agreement, providing that an employee's commissions will not be paid unless the employer has invoiced commissionable amounts to the client prior to the employee's termination, is contrary to public policy and a violation of [322 Conn. 388] General Statutes (Supp. 2016) § 31-72.2 The defendant, Securitas Security Services, USA, Inc., appeals from the stipulated judgment of the trial court in favor of the plaintiff, Kevin Geysen, on his wage statute claim and the trial court's underlying ruling holding that this commission provision was contrary to public policy. Additionally, the plaintiff cross appeals claiming, inter alia, that the trial court improperly granted the motion to strike counts two and three of the complaint alleging breach of the implied covenant of good faith and fair dealing and wrongful termination in violation of public policy, respectively. We agree with the defendant that the trial court improperly determined that the commission provision violated public policy and constituted a violation of § 31-72. With regard to the plaintiff's cross appeal, we hold that count two of the plaintiff's complaint alleging breach of the implied covenant of good [322 Conn. 389] faith and fair dealing should not have been stricken but that count three

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alleging wrongful discharge was properly stricken. Accordingly, we reverse in part the judgment of the trial court.3

The following procedural history and facts are relevant to this appeal. The defendant is a security services company that provides various protection services to industrial and commercial clients. These services are marketed through employees hired as business development managers (managers) who solicit new business from prospective and existing customers. In August, 2005, the defendant offered the plaintiff an at-will position as a manager. The defendant's offer letter, which the plaintiff signed in September, 2005, provided that the plaintiff's compensation was a weekly base salary and commissions on contracts he procured.4 The offer letter referenced and mirrored the defendant's 2003 sales incentive plan, which was in effect at the time the plaintiff commenced his employment.

The defendant subsequently amended its sales incentive plan effective December 23, 2006, and revised the commission provision at issue. Section II, part C of the 2006 sales incentive plan regarding sales eligibility requirements provides that " [c]ommission is

only paid once work has been performed and invoiced to the client. Upon termination of services to the client all commissions cease, except that commission will be paid up through and including the final invoice. Upon the [

manager's ] termination of employment, all commissions cease, except that any commissionable amounts that have been invoiced [ to the client ]

prior [322 Conn. 390] to the [

manager's ] [t]ermination

...

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