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Retaliation -- Wage reduction


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#1 LawNow_1

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Posted 22 December 2012 - 08:07 AM

I work for a small credit union.. I am a mortgage loan officer and have been with the company for 11 years.. Prior to 2012 I was presented with a written 2012 Compensation plan which included a base salary of 80K $ and a bonus of 1% for all mortgage loans produced "over" $10 Million...

I have produced a little over $20 Million in loan volume this year and my bonus under the compensation agreement would be approx. $100K. I was called in for a meeting last week regarding the bonus that was due me.

I was informed that management had for whatever reason "not" been accruing my bonus and that the company could not pay out a $100K bonus... but they would consider paying me a $60K bonus... I was told that if I were paid the full bonus that I would be making more than the president of the company. I told them that I had worked extremely hard to earn my bonus and for then “not” to pay me the full bonus was a clear violation of our written agreement and a possible violation of wage and hour laws. I also informed my supervisor that no where in the agreement did it state that I could not make more money than the president of the company.

I was informed that if I did not want to be a team player and accept the $60K bonus that was proposed then things may get "ugly"...I told them I “did not” want things to get ugly and that I had done everything that had been asked of me and that I had make the company a lot of money but I was not willing to accept a bonus less than what our agreement called for.

About 1 week later I was called in for another meeting. My supervisor said that he had my compensation plan for 2013 and he wanted to review the plan with me. I ask him if a decision had been make about my bonus for 2012 and he stated the full bonus of $100K would be paid as was stated in the 2012 comp agreement.

He then presented me with my 2013 plan which reduced my base salary from $80K to $35K and included a new incentive plan in which a bonus is paid off of loan fees and not loan volume which is a clear violation of the new TIL Reg Z rules… I told them I was not happy with the preposed plan and I would have to think about it for a few days.

I think this is clear case of retaliation for my refusing to agree to accept a lower bonus amount for 2012 than my plan called for and I think management knows that by reducing my over all compensation by more than 55% for the upcoming year will cause me to leave the company.

Do you think I would have grounds for retaliation claim or a wrongful discharge case with the information I have provided here? Looking for any advice I can get before I spend $$$$ on an attorney.

#2 adjusterjack

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Posted 22 December 2012 - 09:34 AM

Do you think I would have grounds for retaliation claim or a wrongful discharge case with the information I have provided here?


I seriously doubt it.

Depending on the terms and conditions of your original contract, paying you only 60000 out of the agreed 100000 could have been a breach of contract that you could have sued for.

But if they are paying you the full amount accrued during the term of your original contract and are now offering you a new contract (upon the expiration of the old contract) with different terms, there is nothing illegal about it.

You have the option of accepting the offer or walking out. I suggest, of course, that you get your check for 100000 first, if you decide to walk.

Please consult with an employment law attorney for a review of the old and new contract and examine your options.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#3 LawNow_1

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Posted 22 December 2012 - 12:31 PM

Would you not consider a 55% reduction in pay an adverse action...in light of the record loan volume I generated and given the company's profits are up 2 million dollars from last year. I think there is clearly causation (my unwillingness to accept a lower bonus)... and an adverse action (55% reduction in pay after a banner year)...directly on the heels of my bonus rejection.... I think any reason person would view that as unreasonable and retalitory in nature????

#4 adjusterjack

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Posted 22 December 2012 - 02:37 PM

Would you not consider a 55% reduction in pay an adverse action...in light of the record loan volume I generated and given the company's profits are up 2 million dollars from last year. I think there is clearly causation (my unwillingness to accept a lower bonus)... and an adverse action (55% reduction in pay after a banner year)...directly on the heels of my bonus rejection.... I think any reason person would view that as unreasonable and retalitory in nature????


Yes, but not "illegally" retaliatory.

There's a big difference.

By the way, getting fired for giving the employer a hard time would also be adverse and retaliatory but not illegal.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#5 LawNow_1

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Posted 22 December 2012 - 03:37 PM

If it were determinded that the salary reduction was an adverse action directly related to my complaining about the proposed reduction in my bonus then it would clearly be "illegal"... would it not??? In cases that I have researched it appears that the timing of the causation and the adverse action play a large part in determining if retaliation exist.... and in this case it is very clear that the timing element is there... Are you an attorney??

#6 adjusterjack

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Posted 23 December 2012 - 10:24 AM

If it were determinded that the salary reduction was an adverse action directly related to my complaining about the proposed reduction in my bonus then it would clearly be "illegal"... would it not???


No.

In cases that I have researched


Please cite those cases so I can read them.

In cases that I have researched it appears that the timing of the causation and the adverse action play a large part in determining if retaliation exist.... and in this case it is very clear that the timing element is there...


I'm not denying that.

I'm just saying that none of it is illegal.

Are you an attorney??


No.

If you doubt my comments, you are welcome to consult one.

I re-read your original post and noticed that you made the following comment:

He then presented me with my 2013 plan which reduced my base salary from $80K to $35K and included a new incentive plan in which a bonus is paid off of loan fees and not loan volume which is a clear violation of the new TIL Reg Z rules…


I seriously doubt that TIL Reg Z has anything to do with your compensation but I'll reserve judgment until you can quote me the section that says it does.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#7 Tax_Counsel

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Posted 23 December 2012 - 03:24 PM

I think this is clear case of retaliation for my refusing to agree to accept a lower bonus amount for 2012 than my plan called for and I think management knows that by reducing my over all compensation by more than 55% for the upcoming year will cause me to leave the company.

It almost certainly is a reaction to the $100,000 bonus that you earned for 2012 that the company clearly didn’t like.

Do you think I would have grounds for retaliation claim or a wrongful discharge case with the information I have provided here? Looking for any advice I can get before I spend $$$$ on an attorney.

Under federal law, the answer is clearly no. Whether this is illegal retaliation under state law I cannot say as you didn’t specify the state. However, with that said, in no state I’m familiar with would it be illegal. Most “retaliation” is legal. The law only makes it illegal in certain circumstances. The most common circumstances are acts taken in retaliation for an employee exercising his/her rights under the law.

Typically reporting the company for some illegal act to a government agency is often protected and retaliation for making that report to the government agency is often illegal. For example, a report of illegal race discrimination by the employer to the federal EEOC would be protected and if the company retaliated against you for making that report to the EEOC, that would be illegal.

But nothing like that happened here. Indeed, the company’s proposal to you to reduce the 2012 bonus wasn’t a violation of any federal law and very likely not a violation of any state law, either. Complaints about legal things the company does are generally not protected. All that happened was that the company hadn’t kept track of the bonus you were earning and was shocked at how much it was. So management proposed to you that you accept a smaller bonus. You refused, stood your ground, and are getting your $100,000 bonus. All of that is simply contract negotiation. The next phase of the contract negotiation is that for the next year the company is offering you a new bonus structure.

The company has no legal obligation to keep paying you in the future what you had been paying in the past. So long as what you earn is above minimum wage (and it clearly would be here), the company is free to reduce your future compensation. You don’t have to agree to that, of course, but you may find yourself fired if you don’t.

Feel free to consult an employment law attorney in your state. Shouldn’t cost you much to find out if this would amount to illegal retaliation under your state’s law.

#8 LawNow_1

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Posted 24 December 2012 - 03:12 AM


Sorry but you are incorrect about the “new” compensation proposal. You will note in my original post that I stated part of the new comp plan would have some of my pay based on the “fees” that are earned on loans produced. A loan officer can not be compensated based on any terms or conditons of a loan as this is clearly a violation of Reg Z Loan Officer compensation listed below.

If I reject the proposed compensation plan and the company terminates my employment, then I would have a cause of action, would I not?



Regulation Z: Loan Originator Compensation and Steering
12 CFR 226



This guide was prepared by the staff of the Board of Governors of the Federal Reserve System as a "small entity compliance guide" under Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, as amended. The guide summarizes and explains rules adopted by the Board but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements. The complete rule, including the Official Staff Commentary, which is published as Supplement I to Regulation Z, is available on the Government Printing Office web site.
The Truth in Lending Act
The Truth in Lending Act (TILA) is implemented by the Board's Regulation Z (12 CFR Part 226). A principal purpose of TILA is to promote the informed use of consumer credit by requiring disclosures about its terms and cost. TILA also includes substantive protections. For example, the act and regulation give consumers the right to cancel certain credit transactions that involve a lien on a consumer's principal. Regulation Z also prohibits specific acts and practices in connection with an extension of credit secured by a consumer's dwelling.
Prohibitions related to mortgage originator compensation and steering
Regulation Z prohibits certain practices relating to payments made to compensate mortgage brokers and other loan originators. The goal of the amendments is to protect consumers in the mortgage market from unfair practices involving compensation paid to loan originators.
The prohibitions related to mortgage originator compensation and steering apply to closed-end consumer loans secured by a dwelling or real property that includes a dwelling. The rule does not apply to open-end home equity lines of credit (HELOCs) or time-share transactions. It also does not apply to loans secured by real property if the property does not include a dwelling.
For purposes of these rules, loan originators are defined to include mortgage brokers, who may be natural persons or mortgage broker companies. This includes companies that close loans in their own names but use table-funding from a third party. The term loan originator also includes employees of creditors and employees of mortgage brokers that originate loans (i.e., loan officers).
Creditors are excluded from the definition of a loan originator when they do not use table funding, whether they are a depository institution or a non-depository mortgage company, but employees of such entities are loan originators.
The rule prohibits a creditor or any other person from paying, directly or indirectly, compensation to a mortgage broker or any other loan originator that is based on a mortgage transaction's terms or conditions, except the amount of credit extended. The rule also prohibits any person from paying compensation to a loan originator for a particular transaction if the consumer pays the loan originator's compensation directly.
The rule also prohibits a loan originator from steering a consumer to consummate a loan that provides the loan originator with greater compensation, as compared to other transactions the loan originator offered or could have offered to the consumer, unless the loan is in the consumer's interest. The rule provides a safe harbor to facilitate compliance with the prohibition on steering.

#9 Guest_FindLaw_Amir_*

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Posted 24 December 2012 - 08:56 AM

You may want to visit the Employment Law Center: Losing a Job and read Wrongful Termination as a good resource to learn more about this subject matter.

#10 adjusterjack

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Posted 24 December 2012 - 10:34 AM

Sorry but you are incorrect about the “new” compensation proposal. You will note in my original post that I stated part of the new comp plan would have some of my pay based on the “fees” that are earned on loans produced. A loan officer can not be compensated based on any terms or conditons of a loan as this is clearly a violation of Reg Z Loan Officer compensation listed below.

If I reject the proposed compensation plan and the company terminates my employment, then I would have a cause of action, would I not?


I stand corrected.

Assuming that the loans your handle fall under Reg Z and assuming that the "guide" is a correct interpretation of the statute then, yes. I believe you would have a cause of action.

Right now, before you do anything else, is the time to consult an attorney and get expert advice on how to document what your employer is doing and how to take the proper steps to insure that you do have a case.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#11 Tax_Counsel

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Posted 24 December 2012 - 12:26 PM

If I reject the proposed compensation plan and the company terminates my employment, then I would have a cause of action, would I not?


Well, first of all, it’s not clear to me that the compensation plan does violate the rules because I don’t know (1) what kind of loans you originate and (2) I don’t know how the fees in your loans are computed. As to (1), the only loans that are subject to the rule are loans for a “dwelling,” i.e. a home that secured by the loan, and it excludes home equity lines of credit (HELOCs). As to (2), the rule allows for compensation that is based directly or indirectly on the amount of credit extended. 12 CFR § 226.36(d)(1)(ii). If the fees are simply a flat percentage of the loan amount, then basing your compensation on those fees would not violate the rule because in that case the compensation is indirectly based on the amount of credit extended. For example, if the fees were, say, fixed at 1% of the loan amount for all home mortgage loans, then basing your bonus on the loan fees is indirectly basing your bonus on the loan amount itself.

Assuming that the plan would violate the regulations, have you actually pointed that out to you superiors? If you did, what was their response? I think it would incumbent upon you to tell the CU officials the plan violates the regulation so that if the CU officials still persist with that offer you can show they were offering you what they knew to be an illegal compensation scheme.

As to whether you have a cause of action after that if they fire you, it’s possible, though I’ve not researched it. If you did, it would be for illegal retaliation over the refusal to take the reduced 2012 bonus they offered. The CU is certainly free to propose any legal compensation scheme for 2013 that is less than what you got for this year. The case would instead be based on public policy — the termination was based on refusing to accept an illegal compensation scheme. You may wish to see an employment law attorney about that.

Bottom line, though, is that the company has no obligation to continue the bonus you got in 2012. It can reduce it, so long as the compensation scheme used is legal. So, even if you sue for being terminated over a wrongful compensation scheme, there’s no guarantee that you'd get much for it and, in the end, you'll likely be earning substantially less bonus if you stay there. You’ll want to discuss with the employment law attorney what you might realistically get from such a lawsuit and what the costs would be to pursue it.

#12 LawNow_1

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Posted 24 December 2012 - 03:33 PM

Thanks guys for all the feed back… I have reviewed our states labor department rules and regulations and those rules clearly state that no employer may retaliate (and a reduction in wages is one of the retaliatory items listed) once an employee brings a discrimination charge or wage and hour charge (which I did when I rejected the lowered than agreed upon bonus)… From what I have read I think my employers behavior also violates our states common law statues in regards to retaliation.

At this stage I think I have sufficient grounds to at least get an attorney involved to review the merits of my case. I will keep you updated as to the progress (or lack of) with my venture. Thanks again for you’re taking the time to review my post, I do appreciate it.

#13 Tax_Counsel

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Posted 24 December 2012 - 04:02 PM

Thanks guys for all the feed back… I have reviewed our states labor department rules and regulations and those rules clearly state that no employer may retaliate (and a reduction in wages is one of the retaliatory items listed) once an employee brings a discrimination charge or wage and hour charge (which I did when I rejected the lowered than agreed upon bonus).


Your post does not indicate any illegal discrimination. This is also not a case of a “wage and hour charge” violation because a wage and hour charge would be complaint to the federal or state labor department about wages that either are (1) under the minimum wage or (2) not paid in accordance with the overtime rules. Your pay for 2012 was way over minimum wage, and your bonus issue was not an overtime problem. Your rejection of the reduced bonus for 2012 was simply a contract dispute, nothing more. You won't get a retaliation case out of that. As a I said, if the pay scheme they offered for 2013 violates the Federal Reserve regulations on payment of mortgage brokers, and the employer fired you for refusing to accept an illegal payment scheme, you might well have a good civil claim for wrongful discharge — but it would be based on public policy grounds, not illegal retaliation. If the pay scheme the employer offered for 2013 is legal, then all this boils down to is contract negotiation, and firing you for refusing to take the pay offered would not be wrongful termination.

#14 harrylime

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Posted 24 December 2012 - 08:50 PM

Are you in New Jersey?

Even if... I just can't see the applicability. My reasons would just be pretty much a repeat of what Tax_Counsel has written, so I will forego that.

#15 Tax_Counsel

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Posted 25 December 2012 - 03:57 AM

The two cases below may change your view... Particular attention should be given to the comment


They do not change my view. The case mentioned in that article that has any applicability here is the one concerning changing the bonus computation after the bonus had been earned. Assuming you were employed in NJ, that case would have applied to give you a cause of action had the employer paid you less than the $100,000 bonus you earned in 2012 without your agreement to that lesser bonus. But the employer is paying you the $100,000 bonus you earned for 2012, so you have no lawsuit over that.

The article points out that the employer is free to change the bonus structure going forward so long as the employer notifies the employee of the change before the bonus is earned. Telling you now about how the bonus will be computed in 2013 certainly meets the notice requirement. Frankly, the NJ decision is not all that earth shattering — I'd expect a similar result in my state, too. It does not, however, help you in this circumstance.

Look, I understand you don't like that the employer doesn't want to pay you the same bonus scheme for 2013 that you had for 2012. But so long as the bonus scheme for 2013 doesn’t violate the Federal Reserve regulations on payment to mortgage orginators, you are paid at least what minimum wage laws require you to be paid, and the employer tells you of the compensation change before it is implemented, the employer may legally change your pay. If you don’t like that, you are free to find work someplace else that will pay you more.

#16 LawNow_1

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Posted 25 December 2012 - 03:59 AM

The supreme court has ruled that an action by an employer does not have to be "illegal" per say.... if it can be proved that an action by and employer was "materially adverse" then that can give rise to a retaliation claim.

Supreme Court Decision Defining Retaliation Posted Image
The United States Supreme Court issued a decision on June 22, 2006 that will have a dramatic impact for employers with respect to retaliation claims. For many employers, charges of discrimination on the basis of some protected class are often easily refuted by objective evidence and analysis. Many times, however, the employer runs into more trouble through retaliation claims than with the underlying discrimination itself. Burlington Northern & Santa Fe Railway Co. v. White provides cogent analysis regarding what is required for a valid retaliation claim.
Title VII of the Civil Rights Act forbids employment discrimination based on a protected class (race, sex, religion, etc.). The Act also contains an anti-retaliation provision that forbids an employer from retaliating against an employee who opposes any practice prohibited by Title VII. In Burlington Northern, the employee complained of sexual harassment. The supervisor was disciplined, but the employee was also removed from her regular duties and provided with standard laborer tasks in addition to non-work related reprisals. The employee filed a complaint with the EEOC for retaliation.
In this case, the Supreme Court sought to clarify what “retaliation” means; specifically, what qualifies as “discrimination” in the context of a retaliation claim. The Court determined that the anti-retaliation provision should not be limited solely to those actions occurring at the workplace or related to employment. Essentially, the Court held that while under Title VII discrimination must be workplace related, the Title VII anti retaliation provision “extends beyond workplace-related or employment related retaliatory acts and harm.” In addition, the Court held that a retaliation claim must involve actions that are “materially adverse” to an employee or applicant. The Court was quick to note that context determines the “materiality” of the harm. As an example, a shift change which “may make little difference to many workers [ ] may matter enormously to a mother with small children,” and could therefore constitute retaliation in the latter instance but not the former.
This decision should underscore for employers the need to take affirmative steps to ensure that employees are not retaliated against for making a discrimination claim. The Court said “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Relying purely on the fact that there is no adverse employment action is not enough. Retaliation claims based on subtle reprisals, including shift changes or outside of work harassment, are now covered by Title VII anti-retaliation provisions as well.

#17 Tax_Counsel

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Posted 25 December 2012 - 05:19 AM

The supreme court has ruled that an action by an employer does not have to be "illegal" per say.... if it can be proved that an action by and employer was "materially adverse" then that can give rise to a retaliation claim.


The case discussed in the summary you posted, Burlington Northern & Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006), doesn't apply to your situation. Federal law prohibits illegal discrimination by employers, i.e. discrimination based on the employee’s race, sex, religion, age (if the employee is over age 40), national origin, disability, or genetic test information. It also bars retaliation against an employee for making complaints about illegal discrimination. In Burlington Northern, the employee had complained about possible illegal sex discrimination. The issue in the case was what kind of acts constitute illegal retaliation for making that complaint of illegal sex discrimination. Specifically, the issue was whether the employer’s actions had to be employment related, or whether an employer’s actions that affect the employee outside the workplace may also be illegal retaliation. The Supreme Court held that indeed such actions that affect the employee outside the workplace may also be illegal retaliation.

The important thing here is that the retaliation must have been because of a complaint of illegal discrimination before the Burlington Northern case applies. That’s because the case is interpreting federal law that specifically makes that sort of retaliation illegal. Your post does not indicate that any illegal employment discrimination under federal law (i.e. based on one of the factors I listed in the previous paragraph) occurred here, nor did you make any complaint of illegal employment discrimination. Since the employer is not retaliating against you because of any complaint concerning illegal discrimination by the employer, the issue raised in Burlington Northern isn’t present and the case has no application to you.

You are grasping at straws here. Please read the information you find on the internet carefully to see if it might actually apply to you, and don’t rely solely on summaries, since lots of sites get things wrong. Look at the actual statute or case involved. You may read the actual Supreme Court opinion cited in that summary at the link I provided above. You seem to be jumping at anything that uses the term “retaliation” and trying to claim it applies to your situation whether the facts fit or not. You need to understand that (1) in general employers may reduce your rate of pay prospectively once notice of the change is given to you and (2) that most “retaliation” is, in fact, legal. The reduction in compensation would be illegal retaliation only if the reason for the reduction was a circumstance in which the law expressly bars retaliation, like retaliation for making a complaint of illegal discrimination about the employer to the EEOC or in court.

#18 LawNow_1

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Posted 25 December 2012 - 05:33 AM

Sorry but I disagree. I will contact a business law attorney and pursue my claim. I always take a stand on what is right and I think that I am clearly in the right here. A employer can not 'strike out " at an employee and be allowed to go unpunished. Given the recent court rulings regarding retaliation and wrongful discharge and given the circumstances with my case, I like my chances. I will keep you updated on the events as they unfold.

#19 harrylime

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Posted 25 December 2012 - 05:50 AM

Sorry but I disagree. I will contact a business law attorney and pursue my claim. I always take a stand on what is right and I think that I am clearly in the right here. A employer can not 'strike out " at an employee and be allowed to go unpunished. Given the recent court rulings regarding retaliation and wrongful discharge and given the circumstances with my case, I like my chances. I will keep you updated on the events as they unfold.


By all means, run this by an attorney. I would suggest one with specific experience in employment law.

But I am unclear on what your claim is exactly.

Your employer experienced heartburn over the size of your compensation package for 2012, but did agree to abide by the plan. After that, did you really think that the employer would not adjust the comp plan for 2013? Do you dispute their right to do so? It might not be the best business decision to possibly lose an all star loan originator for the sake of maintaining an organizational compensation structure. But businesses make bad decisions all the time.

I can't comment on whether the proposed 2013 comp plan violates any regulations. And, as Tax_Counsel has suggested, if the plan does violate the regs and you are terminated for not accepting it, then you may have something to work with.

But, just as a hypothetical. If they say, "We looked at the issue and, you know, you are right about fees thing. We changed the proposed 2013 plan. It's now a $35,000 base and 1/2% bonus for all loans produced over $10 million..." If you were to refuse to accept that and were terminated, do you still think that you would have some sort of "claim?"

#20 LawNow_1

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Posted 25 December 2012 - 07:26 AM

In my initial meeting with employer when the employer suggested that I take less than was agreed in my compensation plan I was told that "if" I did not agree to take the bonus that was offered "things could get ugly"...

I refused the lower bonus that was offered based on the comp agreement I had plus I informed employer that to “not” pay the full bonus would violate our states labor and hours rules as those rules do cover “bonus” payments and cannot be retroactive.

It is the comment “things could get ugly" that in my opinion leads to the adverse action (reducing my pay by 55%.)… I understand that the employer is completely within their rights to terminate or reduce the wages of an employee at any time… but given the circumstances of my case and the adverse action directed at me directly on the heels of my complaints about our states labor laws certainly give rise to a legal interpretation as to what is and is not retaliation. Add to those facts the comp plan that was presented to me for 2013 is in clear violation of Federal Statues and I think have reasonable grounds for an action against my employer.

I’m confident t that any jury would view my case in a positive light once presented with all the facts of this case but I also understand that to get a case before a jury requires a solid legal foundation. From my limited research the retaliation and wrongful discharge laws are moving more to the favor of the employee and away from the favor of the employer and more times than not those rules are subject to various interpretations by various courts. I think now just be a good time to test those rules even further.




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