Musker v. Suuchi, Inc., ___ N.J. ___ (2025).  The question presented in this appeal, as stated by Justice Fasciale in his unanimous opinion, was “whether ‘commissions’ are considered ‘wages’ under the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.15, and are therefore subject to the WPL’s protections.”  As summarized here, both the Law Division and the Appellate Division granted a defense motion for summary judgment, holding that “commissions” were not “wages” but were “supplementary incentives” not covered by the WPL.

 

The Supreme Court granted leave to appeal and reversed.  Justice Fasciale’s concise opinion made that result look easy. 

 

Defendant, which sold a software-driven platform, expanded in 2020, in light of the COVID-19 pandemic, to sell personal protection equipment (“PPE”) as well.  Plaintiff was originally hired to do non-sales administrative work, for a salary.  One month later, however, she “transitioned to a sales role. In addition to her base salary, she became eligible for commissions under Suuchi’s Sales Commission Plan (SCP),” as Justice Fasciale recited.

 

Plaintiff sold PPE to two governmental entities, generating approximately $34,448,900 in gross revenue.  She and defendant differed as to the amount of her commission.  Plaintiff believed she was entitled to 4% of gross sales, but defendant said her commission was 4% of net revenue, a $900,000 difference.  “The parties also disagreed about whether Musker’s PPE commissions were ‘wages’ or were excluded from the WPL as ‘supplementary incentives’ as those terms are utilized in N.J.S.A. 34:11-4.1(c).”

 

Plaintiff sued, asserting that defendant had breached its contract and had wrongfully withheld her wages in violation of the WPL.  On cross-motions for summary judgment, the Law Division agreed with defendant that her commissions were not “wages” but were “supplementary incentives,” as plaintiff was “already entitled” to a salary.  The Appellate Division affirmed in an opinion reported at 479 N.J. Super. 38 (App. Div. 2024).  The Supreme Court granted leave to appeal and reversed, applying de novo review to the issue of statutory interpretation presented.

 

Justice Fasciale almost immediately cut to the chase, “focus[ing] … on the definition of ‘wages’ in the WPL.”  That term is defined as “the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto.”

 

Since neither “labor,” nor “services,” nor “commission” was defined in the WPL, Justice Fasciale turned to dictionary definitions for the ordinary meaning of those words.  “’Labor” means “[w]ork of any type, including mental exertion; physical or mental exertion to achieve some useful or desired purpose, esp[ecially] for gain,’ [while ‘s]ervice’ means ‘[t]he official work or duty that one is required to perform.’”  “’Commission’ means “a fee paid to an agent or employee for transacting a piece of business or performing a service; esp[ecially]: a percentage of the money received from a total paid to the agent responsible for the business.”

 

As a result of those definitions, “because a commission directly compensates an employee for performing a service, it always meets the definition of ‘wages’ under N.J.S.A. 34:11-4.1(c) as ‘direct monetary compensation’ for ‘labor or services’ rendered by an employee.”  But there was still the question of what “supplementary incentives” meant as used in the WPL.

 

Again, Justice Fasciale had to resort to the dictionary, since “supplementary,” “incentives,” and “supplementary incentives” all were undefined by the statute.  “Putting the two terms together, a ‘supplementary incentive’ is compensation that motivates employees to do something above and beyond their ‘labor or services.’  Thus, under N.J.S.A. 34:11-4.1(c), a ‘supplementary incentive’ is not payment for ‘labor or services,’ and a ‘commission’ earned ‘for labor or services rendered by an employee’ can never be a ‘supplementary incentive.’”

 

Justice Fasciale stated, as “a simple matter of common sense,” that “[a]ll monetary compensation arguably motivates, encourages, and incentivizes employees.”  In other words, he said “just because compensation has the capacity to incentivize does not mean it is automatically excluded from being a wage as a ‘supplementary incentive’ under the WPL.”  Justice Fasciale cited examples supplied by amici of “supplementary incentives,” including “payment for sharing office space with another employee, working out of a particular office location, achieving perfect attendance, referring a friend to apply for an open position, or participating in an office costume contest.”

 

The WPL, Justice Fasciale concluded, was unambiguous.  But even if that were not so, “under well-known canons of construction,” “commissions” and “supplementary incentives” had to mean different things.  Plaintiff had rendered “labor or service” in selling PPE.  Her resulting commissions were, therefore, wages.  Neither the fact that PPE was a new aspect of defendant’s business nor plaintiff’s entitlement to a base salary as well as commissions altered that result, as Justice Fasciale concluded by explaining.