Guess what is going to trial? IBM and its tactic of giving up promised commissions after sales representatives reach the deal


Updated IBM’s practice of promising its representatives commission rates that it can lower at any time, particularly after a sale is finally inked, may soon face a jury.
In November 2018, Jerome Beard, an IBM sales manager since 2002, sued his employer, alleging violations of California labor laws, racial discrimination and fraud, because Big Blue paid him fraction of what he claimed to owe for helping to close $ 100. m deal with HCL America in the second half of 2017.
Beard’s incentive plan letter (IPL) from his bosses shows the percentage of sales revenue due to him as commission payment. His portion of the revenue is said to be about $ 12.6 million, for which he was to receive about $ 1.4 million. Instead, IBM decided that the commission revenue was only $ 2 million, for which Beard was to receive about $ 230,000, or about 15% of the expected amount.
U.S. District Judge William Alsup Thursday dismissed IBM’s motion to start the discrimination and fraud lawsuit in a federal court in San Francisco, setting the stage for a lawsuit unless Big Blue decides to settle.
IBM appears to be able to adjust the rewards to sellers at its discretion as it does not have a solid contract with them. His incentive plan letter, used for such contracts, contains a warning that the letters are not commission contracts in a very real and legally binding sense.


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The IT giant does not always review commission payments, it is claimed. Two of Beard’s colleagues who worked on similar offers were paid in full. Both were white; The beard is African American. That said, Beard’s complaint claims that the practice is common enough that IBM saved a substantial amount of money by capping sales commissions. The lawsuit claims that from 2013 to 2015, IBM secretly underpaid its sales representatives more than $ 40 million nationwide.
When sellers have attempted to challenge this arrangement in court, their cases are usually dismissed as there is no formal legal contract in place.
This has been going on for over 15 years, according to a separate complaint in a similar case, Mark Comin against IBM. However, the documents submitted in the Comin case indicate that IBM’s insistence that it does not have a contract with its vendors has put the company in a “catch-22 of its own manufacture”.
Section 2751 of the California Labor Code, promulgated in 2013, requires employers to provide a written contract that specifies commission payments. The recent Comin repository [PDF] said: ” [I]f IBM does not have a commission contract, as IBM has convinced so many courts, so it perfected its own violation of section 2751 in California. “
IBM has tried to work around this problem by insisting that its non-contract is a contract to satisfy California law, but is not a contract as it makes its commission terms enforceable.
“IBM is trying to walk this very fine line that with respect to section 2751, it has a contract, but no contract for any other purpose,” explained Matthew E. Lee, partner at Whitfield Bryson & Mason LLP and one of the lawyers representing Beard and Comin, in a telephone interview with The register. “I don’t understand that and, in my experience, neither do the judges. They either have a contract or a contract. “
Indeed, Alsup J. in his order [PDF] This week, IBM accepted the position that the tech titan’s warning means that his IPL is not a contract, and therefore rejected IBM’s efforts to claim that the IPL is a contract solely for the purpose of satisfying California law. “Since Section 2751 requires a” contract “to meet its requirements, the IPL cannot do so,” said its order in Beard.
Lee said a jury will now have the opportunity to decide whether what IBM has done is legal, although he has authorized IBM to decide to settle. Only about four percent of federal cases end up being tried, he said.
IBM did not respond to a request for comment. ®

Updated to add

After filing this story, an IBM spokesperson replied, “IBM’s panel decisions are based on merit. Beard was the highest paid sales representative for the two transactions at issue. IBM will continue to fight these baseless claims in court. “

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