What happened next was a surprise. His commissions never materialized. At the end of April, "I said, gee whiz, here’s all the loans I closed,” Miller recalled, in a glassy conference room at his new employer, 1st Mariner Mortgage. "And they said, 'we’re not paying you for any of those.’”
In Maryland, salespeople are entitled to commissions on all deals they substantially complete, regardless of whether they’re still employed by their company when the deal closes. Miller appealed to the Maryland Department of Labor, Licensing, and Regulation, and the agency agreed he’d been shorted $56,967.81. “We determined that your employer violated the Maryland Wage Payment Law...by failing to pay your commission wages,” it read.
But Suntrust disagrees. In a letter to Miller’s attorney, a lawyer for the company pointed out what had seemed like an innocuous clause in the standard contract presented to loan officers: “The Plan will be governed by and interpreted in accordance with the laws of the state of Georgia…regardless of the location of the Participant’s employment.”
And in Georgia, loan officers aren’t entitled to commissions on deals that close after they quit.
The legal arrangement is known as a “choice-of-law” provision, and it’s one of a growing number of tools being used by corporations to protect their interests.
Choice-of-law provisions are common in contracts — they allow a company with national operations to standardize its agreements across many states. Even The Washington Post employs them in certain instances. Some companies pick states with laws friendly to their business. For example, many banks are incorporated in South Dakota and Delaware, where the institutions face no usury caps.
In response to an inquiry from the Washington Post, while declining to comment on specific employee matters, Suntrust says that it does include a choice-of-law provision in all its loan officer agreements.
"Like many multi-state companies, we select a governing law for these documents to ensure consistency of interpretation and application, and in our case, we selected Georgia law which is where our parent company is based,” said spokesman Mike McCoy in an email.
It got easier for companies to add choice-of-law provisions in 2013, when the Supreme Court unanimously voted to strengthen the enforceability of “choice of forum” clauses, which are related — they allow a contract to specify which court will handle disputes.
“There’s a greater willingness to enforce the party’s choices based on freedom of contract principles,” says Stephen Erf, a partner at McDermott Will & Emery. “The Supreme Court said ‘look, if there’s a choice of forum clause, and the employee files suit in California, not only are we going to require the case to be transferred, we’re also going to say he can’t get the benefit of having California law applied.”
In some cases, the advantage of choosing the state whose laws you’d rather abide by has advantages beyond convenience. Following the Supreme Court’s ruling, Erf says companies became more optimistic about their ability to enforce non-compete agreements in states that don’t generally protect them, for example.
"I have seen corporations regularly select the law of jurisdictions that will be more favorable to them, both with respect to their employees and their customers,” says Paul Bland, executive director of the non-profit litigation group Public Justice. "Fine print contracts are written by corporations to advance their interests.”
To Bill Miller, that’s a disturbing precedent. The Maryland Wage Payment and Collection Law (MWPCL) is relatively employee-friendly, but that doesn’t matter if corporations are allowed to disregard it. "If other lawyers interpret this the way Suntrust did, MWPCL doesn’t exist,” Miller says. "There are no wage payment laws in the state of Maryland.”
In a letter to Miller’s attorney in early June, Suntrust noted that even if the Maryland rules applied, Miller still might not qualify for the commissions. Others at the bank had to do substantial work on the loans in order to close them, Suntrust said, suggesting he may not have fully earned the payouts. The company is also investigating Miller for the unauthorized removal of customer and bank records, an infraction, if founded, that may require him to pay back commissions already paid.
"I have seen corporations regularly select the law of jurisdictions that will be more favorable to them, both with respect to their employees and their customers. Fine print contracts are written by corporations to advance their interests.”— Paul Bland, executive director, Public Justice
Miller categorically denies any allegation of wrongdoing, saying he acted in accordance with rules set forth by his professional license, which Suntrust has not challenged. Still, Suntrust sent letters to former clients warning them that “a former employee” may have personal information about them, which Miller found deeply offensive.
“When they accused me of stealing things I didn’t steal, I said I don’t care if it’s $6 or $600,000, I’m playing this all the way through,” Miller says. "Fortune 500 companies grind up and crush individuals that try to fight them. They’ve got an army of lawyers. They have an unlimited budget. They have a vested interest not to lose this argument.”
Miller has filed a lawsuit in state court, and it’s unclear where a judge might come down. In its letter, Suntrust cited a number of cases in which federal courts had held that Maryland’s wage payment laws wouldn’t apply. But in late August, the U.S. District Court for the District of Maryland found that subsequent state court dicta were enough to make Maryland’s laws take precedence.
There are a couple of exceptions to the courts’ willingness to uphold choice-of-law provisions. The company can’t just pick any state; it has to have substantial business operations there. And courts are less willing to enforce choice-of-law provisions where the law in question has been deemed a “fundamental policy” of the state, which can be open to interpretation.
For many employees, going to court does not seem worth the trouble. Miller’s colleague David Stradford also left Suntrust earlier this year, but he said he didn’t have as much to lose when he wasn’t paid for deals that closed after he left, so he let it go. "I’m an up and coming guy in the business, I didn’t feel like going through all that,” says Stradford.
To Jay Holland, chair of the employment law practice at Joseph Greenwald & Laake, the choice-of-law provision is part of a pattern of courts siding with corporations that use contracts to stipulate that any disputes will be judged on their terms — similar to the dramatic rise of binding arbitration agreements, which preempt a plaintiff from going to court.
“These laws — wage and hour laws, discrimination, consumer protection — are intended to be broadly interpreted, broadly construed, to provide protection to individuals who did not necessarily have the power to individually negotiate their contracts,” Holland says. “The courts seem to be losing sight of that, in my view.”