Rights to Designs Produced on the Job

I worked for an employer who hired me for one job and then discovered I could do custom design. So, he gave me that job too - no increase in salary. That work I did at home because it was to chaotic at work to design. When the job was complete, he would give me a commission. 15 months ago, he started "negotiations" on changing my pay so that I would be compensated for the time being spent at home - it went on and on.. months in between meetings and then he would change what he said; saying he didn't say something he did.. etc., finally, we got a 3rd party in the meetings 6 months ago so he would be held somewhat accountable for what he was saying. The negotiations went to hell in a hand-basket and he met with me to go over some final redesigns and then had two people come into the meeting when he told me that we couldn't come to an agreement on the design aspect and that the job he hired me for was no longer full time and he had to terminate me.

My question is: once he terminated me, didn't he lose all rights to my designs? (He has 10 projects - the ones he went over before terminating me - in the works.)

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Quoting Audacte

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I worked for an employer who hired me for one job and then discovered I could do custom design. So, he gave me that job too - no increase in salary. That work I did at home because it was to chaotic at work to design. When the job was complete, he would give me a commission. 15 months ago, he started "negotiations" on changing my pay so that I would be compensated for the time being spent at home - it went on and on.. months in between meetings and then he would change what he said; saying he didn't say something he did.. etc., finally, we got a 3rd party in the meetings 6 months ago so he would be held somewhat accountable for what he was saying. The negotiations went to hell in a hand-basket and he met with me to go over some final redesigns and then had two people come into the meeting when he told me that we couldn't come to an agreement on the design aspect and that the job he hired me for was no longer full time and he had to terminate me.

My question is: once he terminated me, didn't he lose all rights to my designs? (He has 10 projects - the ones he went over before terminating me - in the works.)

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The designs you submitted to him during the time you were his employee are his property. You were paid for those designs.

Per the U.S. Copyright Office,

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Quoting What is a work made for hire?

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Although the general rule is that the person who creates the work is its author, there is an exception to that principle. The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author. See Circular 9, Work-Made-For-Hire Under the 1976 Copyright Act.

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This is my point... I wasn't paid for them until they were completed. He has a group of them now which he has not paid for; I was not employed as the designer it was a second "job" that we never resolved compensation for. I was paid hourly; he didn't not pay me for the time at home; he only paid a commission once the job was paid for. He now has 11 projects which he has not paid me for and he terminated my employment before they were finished so he could back out of paying me the commissions he used to... I don't see how he is entitled to any of the designs currently incomplete/unpaid for; done off the clock; in a capacity he never added to my job description or pay scale and a given that the intent of his "negotiations" were questionable at best.

If I understand you correctly you worked as an employee and you also worked as an independent contractor for the same company. Recently you were fired as an employee. You have 10 unfinished projects as an independent contractor. That's confusing. Something seems wrong here.
Are you still working as a contractor? Do you have any sort of agreement (in writing?) about this work? Does your former employer have incomplete versions of your designs such that he can complete them? If you sell your designs to others will the design reveal any company secrets?

Pretty much... I was hired in one capacity - a job I did well and a job in which I also handled more responsibilities... never written up; never a complaint... no job description. Then he discovered that I could do custom design and he told all the sales staff I was now the custom designer - but I had to keep doing all the other things too, btw.. no increase to my hourly wage. When the pieces were paid in full, he would give me a random "commission" in my direct deposit. All my design work was done off the clock. I had to oversee and meet with the clients onsite, obviously. The negotiations never moved forward because every time we sat down, he would deny previous promises and we would start all over again... I finally said "this is how much I want and I agree to all the other parts of your offer. If this is not okay, I will just keep doing the job you hired me to do." He met with me to review two designs that needed tweaking... and suddenly two other people came in and I was told that he had tried "for six months to arrive at an agreement but that my original job was no longer full time and he had no option but to let me go." Meanwhile, there are 11 designs that are in the process of being completed that he hasn't paid for and now that I am not there, I have no assurance that I will be paid for them ... and if he is smart enough to know he should, he will pay some insulting amount. I do not have any contract or any non-compete and yes, he can complete them on his own because I was managing them up until last Wednesday. (These are jewelry designs - nothing involving company secrets.)

What I really want to be able to do is send a letter that says he lost the right to use my designs once he stopped negotiations and terminated my employment. Effective immediately, he is to cease and desist from using my designs.

Now I'm even more confused. You seem to indicate that you were a "custom designer" as an employee, not as an independent contractor. I can't tell who was at fault for the strange arrangement of not reporting your working hours and receiving "commissions" instead of some wages. When you were fired your work as a designer ended.
Sorry but I think you'll be wise to discuss your issues with an employment lawyer. I agree that you should be paid for your design work but this "commission" stuff strikes me as a real scary mess. You seem complicit in cheating the feds

No no. .. it went in on taxable income. The fact I was paid commissions was completely above board. "Direct deposit" in that a commission payment was included in the direct deposit of my regular hourly paycheck. So x hours at blah blah *all the usual stuff* and then "commissions" whatever he decided to pay. I mentioned that direct deposit was used because it isn't as if I deposited a check (ie that I approved the amount

I'm glad that you paid the various taxes associated with your work and that this was managed by your employer. I'm convinced that you were not an independent contractor and find this "commission" arrangement to be most odd. I think you need a lawyer to explore this.
Is this arrangement common in the jewelry business? Why weren't you designing during the working day? Did you keep track of your hours? Did your hourly pay for these designs exceed your pay from your day work? I wonder if your State's labor dept will like this commission business.

Yes, it is very common - all sales positions in jewelry earn commissions. There is no way to find the time or space (or quiet) to do what is required to think of/draw out designs. I was never paid hourly for the designs and I asked a few times how they wanted me to keep track of the 3 - 4 hours a week extra I was putting in on design work at home and they never answered. Since they never had a custom designer before, they had no precedent on pay or anything - so, he would just give me the low side of the commission table rate he gave his sales people.

Thank you for all your time in helping me: one last question: What type of lawyer do I need? I think the only issue are the designs still in-house that were not completed/paid for. I just want those back or for him to pay for them.