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Big Mess, Money owed after termination for my wife Tennessee

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  • ElleMD
    replied
    Accepting the check does not mean you agree with the amount you were paid. Otherwise an employee who's check had a legitimate error could never get it corrected because they agreed to the amount when they cashed the check. It isn't clear if the "him" she worked out this deal with is the owner and the one who actually cut the checks or not. Just because it is easier for you, I'd contact the owner or whomever the deal was discussed with and explain the check was not as agreed to previously. It might just be a legitimate error or lack of communication. I doubt the owner is the one running the payroll.

    If that doesn't prove satisfactory, then she can file a claim with the state DOL for free.

    Leave a comment:


  • jfcgtr
    replied
    Here's the latest

    After an exchange of civil emails between my wife and the owner, here is where we are at this point....

    Based on my wife's research of the Tennessee Law, the company would owe her the agreed commission on sales made before the company policy change.

    It is also, of course, not legal for the company to withhold the balance of her personal item that she purchased from the company without her written consent (which she told him she would not give.)
    And to further clarify, my wife told him that she *would* consider giving him written consent to deduct the balance of her personal item, so long as he agreed to pay her the full amount that was owed to her based on the company sales spreadsheet (which she has kept a copy of.)

    So today is payday for the company, and the owner has done exactly the opposite of what apparently is legal in Tennessee.

    He has *not* paid her the entire amount owed to her, and *has* deducted the balance of the personal item from her check without her consent.

    So at this point, the biggest concern we have (based on our financial situation) is, does she have to save her final check and *NOT* deposit/cash it in order to submit a claim to the Tennessee DOL?

    Or would she be able to pursue the amount owed to her even if she deposited the shorted check ?

    Her concern is that if she deposits the check, that somehow legally she'd be "accepting" the amount paid to her and not have grounds to pursue the rest of the amount owed.

    I told her I didn't think this was correct, but wasn't sure. I told her I thought it would be fine to accept the check, but still pursue the rest through either civil suit or through the Department of Labor (whichever would be appropriate.)

    I'd love to hear your thoughts here.

    And again, thanks so much for the good advice and direction posted here. You folks have given us great info for starting points on getting the situation resolved!
    Last edited by jfcgtr; 07-16-2008, 06:40 AM.

    Leave a comment:


  • Betty3
    replied
    The requirement for the federal PDA is at least 15 employees. However, the Tennessee Human Rights (discrimination) Act applies to employers having 8 or more employees. Pregnancy is protected under the sex discrimination protection.
    TCA 4-21-101, 4-21-102

    Leave a comment:


  • ElleMD
    replied
    Read the above post. If the money is withheld without a written agreement she can file a claim with the state DOL or federal DOL.

    If there aren't 15 employees then federal law won't protect her. Indepenent contractors and subcontractor's employees would not count toward the total. State law has an even higher threshold.

    Leave a comment:


  • jfcgtr
    replied
    Originally posted by Marketeer View Post
    They cannot terminate your wife for being pregnant, but they can terminate her in spite of it. We can say from here which it was. If she feels that she was terminated because of her pregnancy, her recourse is to report the company to your state's human rights commission or to the federal EEOC. The Pregnancy Discrimination Act applies to employers with 15 or more employees. It's unclear from your post whether the company meets the size standard.

    Your wife needs to have her commission agreement and/or whatever documentation she has reviewed by an attorney. We can't comment on any written agreements here, because the devil is in the details.

    There's no requirement to give warnings before terminating someone, although it's certainly an HR best practice.
    Understood. The problem here, and probably with a lot of small businesses, is that there may not have ever been an official document that stated commission rates. I'm afraid we may have problems in that commission sales were strictly verbal agreements. I'll see if my wife can find out if there are any documents pertaining to commission rates.

    And yes, we are aware that proving that she was fired for being pregnant would be very difficult. Although, it's an interesting coincidence that the GM was terminated during maternity leave one week prior. AND, the fact that former GM is in possession of a memo in particular where the owner instructed her that she could hire a prospective female employee so long as the potential employee "agreed to have her tubes tied upon employment."
    Slimy and unethical for sure, but again... Not sure how much of a legal suit is there.

    I guess my only other question would be, exactly where should we start? I do not believe the company had 15 staff employees, but instead relied on contracted (some of which are known by company employees to be illegal workers) labor in the warehouse for manufacturing/production. The office payroll most likely had less than 15 employees from my wife's quick head-count.

    So at this point, it would do us no good to contact a labor board of some sort, or should we still consider it?

    And as far as withholding her purchase balance from her final check, we are out of luck there as well?

    Thanks for your help!
    Last edited by jfcgtr; 07-14-2008, 09:16 AM.

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  • ElleMD
    replied
    1 & 2. Is there a written commission policy? What does it say about when commissions are earned?
    Straight from the state webpage
    My employer has just told me he is going to cut my pay. Can he do this without my approval?

    An employee's pay can be cut with or without his approval as long as the employer tells the employee BEFORE any work is done. The employee cannot work without first knowing the amount of wages to be paid. Title 50-2-101


    He doesnt decide whether she gets unemployment or not, the state does. He can contest it if he likes as is his right but based on what you shared, she would not be disqualified from receiving benefits. Stating that the owner is a bother and wasting her time via IM using work computers tends to be a career limiting move and did not show good judgement but it wouldn't disqualify her from benefits. Just apply. Applying has no effect on her ability to contact the EEOC or any other regulatory body should you determine that the real reason was not the IM but her pregnancy (which takes much more to prove than just the owners dislike of children).


    3. Again from the state site
    Can my employer withhold the cost of my uniform, equipment, company loans, shortages and negligence, etc. from my paycheck?

    No. Your employer cannot make any deductions from your paycheck without your consent to the deductions.

    Unauthorized Deductions from Paycheck:

    Under Tennessee law deductions can only be taken out of pay if the employee has authorized it by a written statement.

    If the employer refuses payment of wages, what can the employee do?

    Anyone who has a problem collecting wages can file a wage claim with the Tennessee Department of Labor and Workforce Development's Division of Labor Standards. If the circumstances are such that we are unable to help, the complainant is referred to court.

    Leave a comment:


  • Marketeer
    replied
    They cannot terminate your wife for being pregnant, but they can terminate her in spite of it. We can say from here which it was. If she feels that she was terminated because of her pregnancy, her recourse is to report the company to your state's human rights commission or to the federal EEOC. The Pregnancy Discrimination Act applies to employers with 15 or more employees. It's unclear from your post whether the company meets the size standard.

    Your wife needs to have her commission agreement and/or whatever documentation she has reviewed by an attorney. We can't comment on any written agreements here, because the devil is in the details.

    There's no requirement to give warnings before terminating someone, although it's certainly an HR best practice.

    Leave a comment:


  • Big Mess, Money owed after termination for my wife Tennessee

    First of all, I am very glad I found this site. I feel like it's a great resource for going forward with resolutions that involve labor issues.

    Here's the synopsis-

    My wife, who is 6 months pregnant, was terminated from her company last Monday (July 7) with no notice, having never received a verbal or written reprimand from a superior. In fact, she has on record a number of times where she received praise for outstanding work during employment with the company for just short of two years.

    There are a lot of factors involved, and some of which I'm sure we will need to consult an attorney concerning... But I'm hoping to get some basic, "ball park" ideas about what steps to take from you fine folks.

    My wife's job function was office administration, project planning, and inside sales for a privately owned company in Nashville.
    Her general manager ( a female on a maternity leave), was fired one week prior... Again with no notice or prior reason given.
    So the potential for sex/pregnancy descrimination is certainly there... Especially given the fact that the former GM (who my wife had befriended) has very ****ing emails from the owner of the company concerning his disdain for pregnancy, children, etc. But again, these are deeper legal issues for later.

    My main concern is this-
    My wife is owed commissions on sales up until the day of her termination.
    The agreed rate for her commissions was 2%, and had been since she had worked at the company.

    However, one week before her firing, the owner sent out a memo that, because of poor sales and the struggling U.S. economy, he was cutting inside sales commissions to .5% effective immediately.

    1) Would my wife be owed the full 2% commission on her sales made up until this company policy change?

    After termination, my wife exchanged emails with the owner (which we have saved) in order to try & clear up final money owed to her.
    She also saved her sales spreadsheets from her work computer on the day she was fired.

    When attempting to give his reasons for firing her, his reasons were simply that she had insulted him in an Instant Messenger conversation that she had with the *now former* GM (and also a friend of my wife.)

    The "insulting" Instant Message (which the owner was reading in a different office while it was being typed) stated by my wife was that the owner "was bothering her and wasting her time" during her lunch break. Which was the truth! She used no profanity, called him no names, and divulged no company information. She simply was explaining why she didn't have time to talk right now because of a busy work day.
    Regardless....

    NOW, the owner is telling my wife that in her final paycheck, she will be paid her salary up until the day of her firing, along with only .5% commission on prior sales.

    He also states in his email that he will not contest her application for unemployment, so long as she agrees *not* to contest her termination based on his reasons for firing her (use of computer for personal use while on the clock.... BOGUS Insulting messages & divulging company information to a former employee.... BOGUS)

    Obviously, you are only hearing our side of the story... But keep in mind that my wife has NEVER been fired from any job, and graduated college a 4.0 student at the top of her class. In addition, as I said, had been praised on numerous occasions at her (now former) job for being of high character with strong work ethic. It is also easily proven that she only used her work computer for business use, with personal email/internet surfing kept very brief, and only during breaks.

    2) Not only is the owner saying her will only pay her .5% on her prior sales, he is also saying that he will not pay any future commissions where the customer has not yet paid

    Unethical, yes... But is this legal in Tennessee?

    3) To further complicate matters, my wife purchased an item from the company (their main product) in which it was agreed that she was allowed to make $100 installment payments from her commission checks.

    The owner has said that not only is he only going to pay her .5% on her prior commissions, but that he is also going to deduct the entire balance of the item from her final check to pay it off.

    Unfortunately, with my wife's loss of income and the probability that she won't find another job until after she delivers our child in October, we are in a VERY serious pinch. We very seriously *need* the money that is owed to her to pay our mortgage, feed our children, etc.

    40Can her former employer withhold the entire balance of a purchased company item from her final check without her permission? Especially when there was already an agreement in place for her to make monthly installments?

    As I said at the beginning, the whole situation is a mess. But I'm hoping that I can get some ideas about where to start in helping to resolve these issues.

    Is there a labor board that we should speak to first, or do we need to immediately seek to an attorney?
    We are very new to these issues and have never dealt with anything like this before, so any help on where to start is appreciated..

    Thanks so much!
    Last edited by jfcgtr; 07-16-2008, 05:51 AM. Reason: Update
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