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rsa.esq
rsa.esq, Lawyer
Category: Business Law
Satisfied Customers: 73
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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I work company as a sales representative. over the past year

Customer Question

I work for a company as a sales representative. over the past year there has been quite a bit of what I believe to be illegal operations transpiring. we are in a union environment so when the renegotiated contract was voted down the company threatened
a lock out. After this occurred the head steward (who from my knowledge should not have been head of the stewardship working within the firm that was undergoing negotiation) came into the conference room of all the reps and told us that we needed to vote yes
on this contract because, and I quote "I have been here 25 years and I would like to make that 26." The newly negotiated contract passed the second voting and pay structure changes ensued (the steward aforementioned above has since have her position "outsourced").
The original agreement which was not received until months later contradict the changes in commission structures and has since had a couple addendums added to the "voted on" agreement, still leaving areas of disconnect between the practices in place and the
document itself. This is a major company. The majority of the sales force in this location have moved on as pay deductions and discerning practices have left the majority of the employees struggling to sustain on any level. I myself am within this group as
I have lost all the assets I have gained from my time with this company due to my need to liquidate them simply to keep my family afloat. The position they have cultivated has confined the employees within the firm to what feels to be extorted labor and while
the tactics implemented are brilliant in the respect of devised strategic implementation, they have destroyed the lives of many that once worked alongside me. We are talking emotional, physical and mental distress, diagnosed anxiety, depression as well as
a plethora of ill effects. My question would be where should I begin to seek legal action, do I have a case and if so would this be a class action suit, and out of fear of loosing my job how do I approach this situation as I feel they have managed to escape
accountability or repercussion due to this very concern. I sincerely ***** ***** for you time. I do have all pertaining documentation along with record of all mentioned anomalies. Thank you - T.R.M
Submitted: 1 year ago.
Category: Business Law
Customer: replied 1 year ago.
I realize now this is a broad synopsis so please allow me to elaborate. The disconnect comes from accounts that were sold that neglected to pay their bill and therefore the company redacts the money paid initially in the form of a negative balance on the employee's commissions earned. Problem number one: with the initial pay structure being tiered the transition metrics were never set in place when the pay structure changed. For example: You sell an account in Oct 14' and you make $1,000 on said account. In January the client has still not paid the bill so no that the account is being removed from the platform the employee, yourself in this example is facing a negative $1,400 as opposed to the $1,000 that was initially paid out due to the fact that "said sale" helped progress the employee's commission escalation progression. Now this was the old payment system so the primary problem being problem number 2 is that the new agreement falls into place and the new agreement primarily rests upon the monthly bonus received through completing the month a certain percentage to the monthly objective, used to compensate the vast differential in initial commission paid out. The problem is when the slate got wiped clean and the percent to the monthly objective got set to 0, the incoming accounts that were a part of our performance numbers prior that now were reflecting a negative balance on our commissions were not only taking back more than what was paid out initially, but also were negatively reflecting upon the performance objective keeping said monthly bonus out of reach. I left work 170% to my rolling 12 month objective and the very next day I was -230% to objective as the slate got wiped to zero but the accounts that were being expunged and sent to collections were taking more away from my earned commissions than I was paid out in the first place.(In the newly negotiated agreement it states accounts would not charge back against the current pay platform). The third area of concern in the companies ability to maneuver their assets. It is as though they are using the negative balance of the employees as an escrow account, not only maneuvering money freely but also keeping their employees negative at all costs, i.e. - free labor. Example: You have my maximum 33% commission protection. Any reflected negative goes against your receivable pay first, so what will happen is there will be an account that appears on your commission statement as though you are getting paid for it. (Keep in mind bonuses are paid out once monthly.) So the company pays lets say $1000 on this account but due to pre-existing negative balances you only keep 33% of that making the actual pay out $330.00. Then bonus time rolls around and they distribute an email stating there was an error in commissions and that the money is going to be taken out of the next check. The next check being bonus time you are set to earn lets say a $2,000 bonus of which due to a negative balance you only keep the 33% of that being $660. Now since the company wrongfully paid you the "$1000.00" of which you only saw $330.00 they are now going to retract the full $1000.00 from the current pay cycle leaving you $340 below what you would have seen from your monthly bonus. Even more in the red even though you fought your way to earning a higher objective than you even needed to due to the fact that you were not only reaching your objective but also the negative generated from accounts that can do nothing but hurt you moving forward.I hope this helps to clarify. I am just looking to see if there is anything here or anything that can be done about the hardships inflicted upon my family from all of this. Like I stated in the first question, this is a very big company and I know a lot of individuals that have lost everything from the very things mentioned above.Thank you so much for your time.- T.R.M
Expert:  rsa.esq replied 1 year ago.

Hi, I'm scott!

First, I need to state that I am licensed in California only, and that lawyers in this forum cannot give specific legal advice to specific legal problem, but can only address legal issue generally.

With that in mind, I hope I can provide a little perspective: before becoming a lawyer, I served as a shop steward at a major company, so I have those two perspectives to offer.

As a union member, it is easy to feel one is being exploited in many ways not only by the employer, but also by the union itself! Union shop members should keep in mind that in any individual contract negotiation the union fits that into its overall industry labor strategy. And conflicts often creep in with that overall strategy and the specific needs of the individual shop with contract under negotiations.

As you also noted, local union shop officials are also employees and also have their own agenda that may present a conflict of interest. But while not illegal, there may be union bylaws or policies being violated by the use of individuals with such conflicts, and formal complaints to the union can be made.

Shop member can organize and withdraw from the union and create their own mini-union to bargain directly with management -- but obviously that is expensive and time consuming (and why labor turns to unions in the first place!)

Turning to collective bargaining laws, policy and remedies...

to say that collective bargaining labor law is complicated would be understatement.

At the most basic level, collective bargaining agreements ARE contracts that have to be adhered to by all parties: failure to do so by any one party may give rise to a breach of contract. So if a contract commision structure is not being implemented or followed, than a remedy may be available. But because these contracts are so complicated, the parties usually determine it is most efficient to work out the problem among themselves. If any of the parties go to court, they will find the court reluctant to get entangled, and likely to first order the parties to try mediation, arbitration and settlement before they can proceed with a court action.

With respect to the injuries suffered by employees in the broad scenario described -- I'm not sure whether the remedy sought is preferred from the employer or from the union itself.

If there is any tort cause of action, the only one I can perceive against either might be negligent infliction of emotional distress.

But I've never heard of such a tort action against a union, and in any case it would be difficult to substantiate. This cause requires the offending party to be away of the potential consequence of their behavior, and be aware of the vulnerability of the victims, and there must be demonstrable physical impact from the mental distress: mental or physical health care necessitated by the distress, for example.

Also, with respect to the union and this cause of action, it will likely argue that by joining and participating in the union, employee-members agreed to allow the union to represent them and bargain for them with tactics at the discretion of the union officials, and so the union members thereby waived their right to bring an action based on an unintended tort such as negligence.

This issue would require detailed legal research and analysis project (I do such research for $30 per hour).

With respect to whether this could qualify as a class action, the first thing to note is that, in general, courts do not like class actions, and strictly construe the requirements for certifying them. There have been class actions certified with as few as several dozen members, but those are older and rare, and now, the general rule is that at least hundreds of class members are needed -- with thousands of class members being preferred.

I know this response was broad brush, and not what you were hoping to hear: we all like clean and simple answers, but the complications in collective bargain labor disputes make detailed answers here impossible. And as I indicated, lawyers in this forum cannot give specific legal advice to specific legal problems.

However, if you found this at all responsive/informative, I would appreciate your acceptance and positive rating.

Thanks!

scott