Guiry v. Goldman

31 A.D.3d 70, 814 N.Y.S.2d 617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2006
• Status: Published

Opinions

OPINION OF THE COURT

Friedman, J.

Article 6 of the Labor Law regulates certain aspects of the payment of “wages” (Labor Law § 190 [1]), and prohibits making an employee’s right to receive such “wages” contingent on his or her continued employment at the scheduled time of payment. The sole issue on this appeal is whether plaintiff, formerly a highly paid employee of a financial services corporation, has a claim under Labor Law article 6 to recover for the loss, upon the termination of his employment, of unvested, contingent rights to equity-based compensation—specifically, restricted shares of the employer’s stock, and options to purchase such stock. For the reasons discussed below, we hold that deferred equity-based compensation of this kind constitutes, as a matter of law, “incentive compensation . . . not included in the definition of ‘wages’ under Labor Law § 190 (1)” (Marsh v Prudential Sec., 1 NY3d 146, 154 [2003], citing Truelove v Northeast Capital & Advisory, 95 NY2d 220, 224 [2000]). Accordingly, we affirm the dismissal of plaintiffs cause of action brought under Labor Law §§ 191 and 193.¹

From May 1993 to June 2002, plaintiff worked as an account executive in the Private Client Services Group at defendant Goldman, Sachs & Co. (Goldman). Plaintiff alleges that, as a Goldman executive, it was his role to advise wealthy Goldman clients and manage their financial assets. By plaintiffs own account, Goldman paid him very well. From 1996 through December 17, 1999, when he was compensated on an all-cash, commissions-only basis, his total compensation was approximately $400,000 for 1996, $654,000 for 1997, $877,000 for 1998, and $952,000 for 1999. Even after December 18, 1999, when plaintiff’s compensation was divided into three components (commission, “subjective” and equity-based), his cash commission income (paid on a monthly basis) remained quite high: $1,174,000 in 2000; $787,000 in 2001; and $325,000 in his six months of employment in 2002.

Immediately before Goldman terminated his employment on June 28, 2002, plaintiff held unvested, contingent rights to “Restricted Stock Units” (RSU’s) of Goldman shares, and unvested options to purchase Goldman stock. These contingent rights had been awarded as the equity-based component of plaintiff’s compensation for 2000, 2001 and 2002. It is both undisputed and established by documentary evidence in the record that, under the relevant contractual terms (to which plaintiff agreed in writing), the vesting of plaintiffs rights to the RSU’s and the stock options was contingent on his continued employment by Goldman on the scheduled vesting date. To reiterate, the question presented is whether these unvested rights to equity-based compensation constitute “wages” within the meaning of article 6 of the Labor Law.

In pertinent part, Labor Law § 190 (1) defines the term “wages,” as used in Labor Law article 6, to mean “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.” In Truelove v Northeast Capital & Advisory (95 NY2d 220 [2000], supra), the Court of Appeals held that a discretionary bonus awarded from a bonus pool whose declaration depended on the “employer’s overall financial success,” rather than on the “personal productivity” of the employee, was outside the statutory definition of wages (id. at 224), and therefore payment of installments of such bonus could be made contingent on continuing employment. In coming to this conclusion, the Court noted its agreement with prior cases that had construed the statutory definition “as excluding certain forms of ‘incentive compensation’ that are more in the nature of a profit-sharing arrangement and are both contingent and dependent, at least in part, on the financial success of the business enterprise” (id. at 223-224, citing International Paper Co. v Suwyn, 978 F Supp 506, 514 [SD NY 1997], Tischmann v ITT/Sheraton Corp., 882 F Supp 1358, 1370 [SD NY 1995], and Magness v Human Resource Servs., 161 AD2d 418, 419 [1990]).

As the dissent correctly notes, the bonus in Truelove is distinguishable in certain respects from the equity-based compensation at issue here. Nonetheless, the Truelove decision carries the unmistakable implication that plaintiffs unvested RSU and stock-option rights were not “wages” covered by Labor Law article 6. In Truelove, the Court of Appeals expressly stated that it “ agree [d] with those courts that have concluded that . . . [Labor Law § 190 (l)’s] definition of ‘wages’ . . . excludes incentive compensation ‘based on factors falling outside the scope of the employee’s actual work’ ” (95 NY2d at 224, quoting Tischmann v ITT/Sheraton Corp., 882 F Supp at 1370). Deferred awards of stock and stock options, like those at issue here, constitute incentive compensation, since they plainly serve the function of giving employees an incentive to stay with the firm and to maximize the value of the firm’s business.

Further, while the nominal dollar value of an RSU or stock-option award at the time it was made was a percentage of plaintiff’s total compensation for the year in question, the ultimate value of such equity-based compensation would depend on Goldman’s stock price after the rights vested, at the time of the delivery of the RSU’s or the exercise of the option. Thus, such compensation bears the hallmark of incentive compensation—its value to the recipient depends on the firm’s “overall financial success,” not simply on the employee’s “personal productivity” (Truelove, 95 NY2d at 224).² Stated otherwise, the equity-based compensation at issue here lacks the “direct relationship between an employee’s own performance and the compensation to which that employee is entitled” (id.) contemplated by Labor Law article 6. Indeed, it is always possible that a deferred award of stock or a stock option ultimately will turn out to have no value, in the event the firm fails before the shares are delivered (in the case of a stock award) or in the event the firm’s stock price stays below the strike price during the exercise period (in the case of a stock option). Labor Law article 6 was intended to protect wages on which employees depend to support themselves and their families, not supplemental income that may prove worthless when ultimately received.

In support of its view that an issue of fact exists as to whether plaintiff’s equity-based compensation constituted “wages” within the meaning of Labor Law § 190 (1), the dissent states that “whether payments under the plan are discretionary or mandatory cannot be discerned from the documentary evidence.” However, even if we assume (in plaintiffs favor) that Goldman had no discretion in determining whether to award equity-based compensation to a given employee in a given year, the equity-based compensation still should not qualify as “wages,” in our view, since such compensation served the function of an incentive, and its ultimate value to the employee was “dependent, at least in part, on the financial success of the business enterprise” (Truelove, 95 NY2d at 224). Although the cash bonus in Truelove was discretionary, Truelove nevertheless strongly suggests that compensation having such characteristics does not constitute “wages,” whether or not it was discretionary. Finally, since the undisputed facts and documentary evidence in the present record are sufficient to establish the non-wage nature of plaintiffs equity-based compensation as a matter of law, the absence from the record of Goldman’s “stock incentive plan” itself should not detain us from resolving the issue at this juncture. Nothing in the stock incentive plan can change the undisputed fact that the values of the RSU’s and stock options depend entirely on the market value of a share of Goldman stock at the time in the future such compensation is actually received.

Accordingly, the order of the Supreme Court, New York County (Jane S. Solomon, J.), entered October 6, 2004, which, to the extent appealed from, granted defendant’s motion to dismiss plaintiff’s first cause of action, should be affirmed, without costs.

1 . The conclusion that the deferred equity-based compensation at issue does not constitute “wages” within the meaning of Labor Law article 6 would remain the same even if plaintiff were within the class of persons protected by article 6. Thus, unlike the dissent, we see no need to determine whether plaintiff was a “supervisory, managerial, executive or administrative” employee excluded from the category of “commission salesman” covered by article 6 (Labor Law § 190 [6]). We express no opinion as to whether, if it were necessary to determine plaintiffs status under article 6, further evidentiary proceedings would be required to resolve that question.

2 . Contrary to the dissent’s assertion, our decision is not based on any “speculation]” that “payment” of plaintiff’s equity-based compensation depends on Goldman’s financial performance. Rather, what we find dispositive is that the value of such compensation (consisting of deferred rights to stock and options to purchase stock) depends entirely on the price the company’s stock will have at the future time the rights in question may be exercised. Obviously, the future value of the company’s stock is a variable entirely outside the employee’s control. On this point, there is no dispute between the parties.