Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.
How are they using this metric? Are they adjusting sales income based on the metric or just whether or not people maintain employment?
According to the call my manager got it would be employment for now, but possibly pay later knowing them. I feel it is unfair, because if your out sick, just plain busy, or off and forget assigned follow up for those days you can lower your score. My socre dropped do to being very busy for a couple of days and has veried as much 80 points over the last week. In this time I have been doing all my follow up based on what they call the processs.
Unfortunately, unfairness is not a factor that either state or federal courts consider when talking about metrics.
Nothing in employment law requires that an employer be fair.
If you could show that the employer's metric is some how skewed specifically to lower the scores of people based on their race, religion, gender, age, disability or FMLA use, then there would be an argument here. For instance, if they reduce a person's score based on absences that were protected by the Family Medical Leave Act, that would be a problem.
However, if no one is being singled out in that fashion, and everyone is being equally treated under this system (meaning that everyone has their scores lowered for the same sort of issues), then neither state nor federal courts are going to be concerned with this sort of system.
When I mentioned pay being changed, the only reason I brought up that issue is that, for an employer to alter a person's pay, they system for changes to pay must be clear and predictable for the employees. Again, it doesn't have to be fair....just clear and predictable. Unless and until they actually change people's income based on the metric, it doesn't have to even meet those requires of being clear and predictable.
Then if employment is at risk that would be related to pay in the mose severest of ways; would it not? Do I not have the right to keep myself employed and achieve the best possible outcome for me under guidelines clearly defined by an employer so they can achieve their goals. I know for me that the score was only brought because I questioned a change in our marketing by the the head of sales.I was just voicing my opinion to facilitate a conversation and explain mine and other sales peoples point of view. So for me, I the only one in my stores to be questioned.
Yes, but the FSLA which concerns fairness in pay, does not concern itself with terminations. So, while I appreciate the subtly of your argument, it doesn't legally work.
In Florida, you are an "at will" employee, which legally means that you can be terminated at any time, with or without cause. In that employment status, no you do not have the right to keep yourself employed.
An "at will" employee can be terminated for any reason or no reason at all, except for terminations based on race, religion, gender, age, disability or FMLA use. That list again, because the list is based on those statutes that actually make certain types of terminations illegal.
Legally, they could have terminated you for questioning the change in their marketing without using this metric at all. They legally could terminate you for liking the color blue too much or for preferring Snickers bars when Mars bars are the boss's favorite (I am not kidding here).
So again, I understand your question. I've practiced in this area of law for a pretty long while now. I sue employers for a living. The practice that you have mentioned is not illegal, on the facts that you have given to this point. If I could tell you differently I would, but I'm not going to lie to you here.
The employer, at this point at least and based on these facts, is not doing anything illegal.
Thank you for the answer. I will continue to document my experiences here. Since I have not been terminated for asking a questions to the sales executive in our supposed open door policy mentioned in our hand book to make suggestion for imporvements, I can only assume they are trying to drive me out and make me quit so as to not have to pay unemployment or face other legal issues. I will hang til they have to terminate me being one of their senior employees who does have a great sales performance. Then I will see my options in Maryland where the coorporation is based out of that owns us.
Yes, I would assume that if they wanted to terminate you, they would already have done so based on "at will" employment.
They very well may have established this metric as a basis to terminate people and then try to block their unemployment based on purposeful/intentional poor performance (at least, they could allege that). It's a failed effort, as their metric would then be subject to very high scrutiny by the state. While they don't need a good reason for termination, they legally do need a good reason to block unemployment.
There is no way to determine purposeful/intentional poor performance if you do not know how it is being measured to prevent the perception of that being conveyed in this metric they use. It is clearly diplayed, but does not offer feed back to where you need to improve your score. Since Maryland is not a right to work state as far as I know, then applying the same in Florida would only stand to demand a clear explanation of scoring and how to raise the score and apply the laws of Maryland here to apply equal opportunity and fairness to all employees of the same company. Why two sets of rule for one company?
I agree with that. I was not saying how they could successfully use it. I was making guess as to how they may be thinking they can use it.
Also, you work in Florida. So Florida law applies to you. The fact that they are headquartered in Maryland has no legal bearing on what employment law applies to you. Additionally, there is no requirement that an employer treat all employees fairly throughout their company when that company has employees in different states. This is why employment law attorneys have to establish different employment handbooks and methods for each state that the employer has employees in, and those guidelines different wildly. The law that applies, for each employee, is that law of the state in which they work.
Furthermore, the issue is not that Florida is a Right to Work state. That's a separate issue. A right to work state is simply a state that doesn't allow unions to have exclusive contracts with employers, giving non-union members the right to work.
The issue is that Florida is an "at will" work state, a completely different employment law. Maryland, while not a right to work state, is an "at will" employment state.
Thank you again for the clarification. At this point I would guess I am safe to get unemployment if that comes up based on a strong inability to block it by employers. If they should do something that would be considered offensive to me and not customary, or acceptable for an employer to do, or try to trap me in something, I will seek out your help at that point. Fitzgerald Auto Mall(JJF Management Services) is a company made of blood, brotherhood and black mail to succeed. If you are good, right and true like me and get in the way of one of the last two mentioned they run you over til there is nothing left.
It is their burden to establish a basis for blocking unemployment, something that is closely scrutinized. Based on that fact, it would be very difficult to establish a basis for blocking unemployment that is centered on performance.
Misconduct is the usual basis, with performance only rising to the level of being worthy to block unemployment if it can be shown to be intentional....meaning a person purposely did not perform when they could. Even when that is true, it is still very hard to show.
As far as unemployment is concerned, you're safe on this issue.
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