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My husband has worked for this current company for 12 years.

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My husband has worked...

My husband has worked for this current company for 12 years. He has been in the sales of office products for 40 years. He works on commission only and has an account for 20 years. His manager told him that they are taking the account away from him and giving it to someone else. They said he wasn’t familiar with the products he has been selling for 40 years. Even though he was the fourth highest earning representative last year. Can he sue?

Lawyer's Assistant: Was this discussed with a manager or HR? Or with a lawyer?

Is this legal?

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

At will. Commission only. No salary.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No. He still wants to work and we are wondering if this may be the companies way of getting rid of a 70 year old.

Submitted: 2 months ago.Category: Employment Law
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5/25/2018
Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 14,319
Experience: Licensed to practice before state and federal court
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago

I’m sorry to hear about your situation. I have dealt with some terrible co-workers, managers, and subordinates in my time. It’s one of the reasons I decided to become self-employed is because I just couldn't take it anymore.

Nonetheless, it’s important to analyze the law in this situation. Harassment/retaliation/discrimination is against the law; however, employment law only makes it against the law if the basis of these actions by the employer are based on your race, gender, age, religious affiliation, sexual orientation, or disability. Employment law doesn’t necessarily cover people who act like jerks. In some states, contract law may help if an employer doesn’t act in good faith. Under the Uniform Commercial Code, any party to any agreement (including employment agreements) has to act in good faith with one another. The failure to do so could be a breach of contract. It’s one of the possible legal solutions, but not always the most practical one.

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Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago

There are some other things that I could recommend to your husband. Generally, I recommend that you and him keep documentation of everything that happened. The frequency, duration, and intensity are going to be important and it’ll make it difficult for them to deny this if you confront them. In addition, you should strongly consider what your employer says about this behavior. With the right documentation and some back up in the employee handbook or policy, it could help you solve this right away. You may want to consider having the people who are willing sign an affidavit (a sworn statement) describing what they saw and heard. There’s a site that I’ve used in the past where you can find a good templates (click here). I also recommend building a support network and getting people involved in the situation who may be advocates for you. They may have practical tips or ideas specific to your industry, your organization, or even your team that could be much more helpful than anything the law could provide.

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Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago

The one thing that you could do is keep a lawsuit in your back pocket. What I mean by this is if the issues continue, then you may want to consider a lawsuit for intentional infliction of emotional distress. IIED means that if someone is intentionally causing severe emotional distress in another, then you may be able to recover for the damages that occurred (e.g. therapist bills, lost wages, medications, etc.). You would have to prove that you suffered damages, but employees have used this tactic when employers have done the same things yours has.

Because I value your input, I would like to know whether you have any other questions for me today that I could help you with?

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Customer reply replied 2 months ago
FDoes the fact that the account they decided to grab from my husband has been his client for 20 years? Is it legal for the company to give incentives to bring in business but when they do, they just take it away so they won’t have to pay the commission. The company just had a sales contest with a trip to Palm Springs for the top 4 sales rep. My husband is number 4. He got the trip but they changed it to Las Vegas but we haven’t been able to go yet because I’m in treatment for ovarian cancer. This is why my husband is still working at age 70. He has worked hard all his life and is the most devoted employee anyone could ever want. He has had a lot of his clients for many years. They all love him and he does a good job for them. Now so we new sales manager comes in and notices that he is a gentleman of age and I think he doesn’t like that. I am wondering if it is legal to do this. I think they know they can’t fire him because of age so this guy is going to play some dirty tricks to make him mad enough to leave. Losing this account will make a considerable loss of income. Is that legal?
Customer reply replied 2 months ago
I’m camping. My phone doesn’t work on this mountain. I don’t understand why this iPad is working here.
Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago

Thanks so much for your patience. What stinks is the fact that it was his client for 20 years doesn't change its legality. It's probably not legal for them to jerk away incentives if they have promised them. It could be a basis for a lawsuit for unjust enrichment or breach of contract by your husband.

What other questions did you have for me today about this?

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Customer reply replied 2 months ago
I read somewhere that if a company hires a commission only employee and they don’t make the employee sign a contract, then the sales reps customers do not belong exclusively to the company. I think it said that if a commission only employee is fired or quits, he still has a right to commission on sales he made to his client. My husband sold office furniture to this customer and much of it is still underway. The client will be purchasing office furniture for the rest of the year. My husband made that happen. He made that sale. Now, they have taken The that business and someone else will be making commission on my husbands sales. I am surprised to find out this is legal.
Employment Lawyer: Legal Eagle, Lawyer replied 2 months ago

Thanks for coming on back. So, if a person is an employee, even if they are commission only, the clients belong to the employer; however, even if they are fired or are quit, they are owed the commissions if they earned them before the termination. So, if his agreement says that he would be entitled to commissions for up to a year, he still must be paid them regardless.

Did you have any other questions for me today? If not, were you satisfied with my service today:-)?

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