Fighting for What Is Right

By Lindsey Novak

February 14, 2019 6 min read

Q: I have been a (100 percent) successful commissioned outside sales representative for the last 10 years at the same company. The company's overall sales began decreasing (reflected in the lower sales for some of the reps), so at the start of the new month, the sales manager gave me a one-month warning to increase my sales figures. Although a one-month warning to raise sales was unrealistic, he ignored the time limit he'd set and let me go. He ignored all the years of my past success, ignored that the company's overall sales were down, ignored that other reps had low sales and none of them were being let go and told me it was a corporate decision. I was, however, the only one over 50 years old, and it was known that the company was hiring younger employees to replace the ones who had left.

Someone told me that our state is an "employment-at-will" state, so companies don't need a reason to terminate an employee. The company also warned me in writing that I had signed a nondisclosure agreement, so I was to keep confidential and not use my knowledge gained during my years of employment for any other company. This is as unfair as giving me one month to raise sales. I was clearly singled out.

A: This situation raises several issues, though they may not all apply to you. Employment-at-will is a state labor law that allows a company to terminate an employee's employment at any time, without a reason or explanation, as long as the layoff is not discriminatory in nature. This means that management can fire an employee who is, for example, difficult, argumentative, irritating, has a bad attitude or clashes with management. (Past workplace studies have shown that more people are fired due to personality clashes with management than due to job incompetence.)

Even though many companies have a 30- to 90-day probationary period to let go a new-but-bad hire, this law gives companies a no-hassle way of releasing a worker has become an irritant. Employment-at-will is considered fair because it equals the fact that an employee can quit without notice or explanation, even if the company would prefer to receive a two-week notice. The rationale is that if a person can quit, the company should also be allowed to fire an employee without reason.

Discrimination may be the key in your situation. Employment-at-will cannot be used by an employer as an excuse to terminate an employee for discriminatory reasons. Your recently lowered sales were no different than your co-workers'. The only difference seems to be your age, and the company's records should show that when employees over 40 leave, the company replaces them with employees under 40.

Title VII of the Civil Rights Act of 1964 — enforced by the Equal Employment Opportunity Commission — protects employees at work from discrimination for race, color, religion, sex and national origin. The Americans With Disability Act, which became law in 1990, protects employees for being fired for a disability, as long as the disabled person can perform the tasks required for the job.

Your first step is to gather your work records — evaluations, sales spreadsheets, the company's annual reports, all the documentation you have access to that shows you were singled out from your sales group. The more details you can provide, the easier it will be for the EEOC to determine if you have a justifiable charge against the company. The company's new hiring practices (replacing over-40s with under-40s) will be easy for the EEOC to learn about through the company's human resources records. Witnesses are good to have, but don't expect your younger colleagues to offer you their records, even if their lowered sales would prove you were singled out.

Once the EEOC decides to file a charge against the company, you may also want to take all your information to an attorney that represents employees rather than employers. Some law firms may represent both, as long as there is not conflict of interest. Having your own attorney, as well as the EEOC to support you, speeds up the process. The EEOC will not be able to pay special attention to your case, no matter how good it is. Your attorney will have the time to focus on your particular case and document the facts.

Filing a lawsuit against a company is not an easy or pleasant process. The courts are overloaded with cases that should have been negotiated and settled before a lawsuit was ever filed. The discovery period can be tedious, and you may be asked to continue to provide documents, note of conversations and anything else that can support your case. But when a person has good reason to file an EEOC charge, that charge is sending a warning to the company that it must clean up its management practices.

Email career and life coach [email protected] with your workplace issues and experiences. For more information, visit www.lindseyparkernovak.com and for past columns, see www.creators.com/read/At-Work-Lindsey-Novak.

Photo credit: at Pixabay

Like it? Share it!

  • 0

At Work
About Lindsey Novak
Read More | RSS | Subscribe

YOU MAY ALSO LIKE...