Sunday, April 15, 2012

Do you want to PERSONALLY pay your employer's YellowBook bill?

I tried to find contact info for these guys, but a LOT of search results for them are law suits.  Then I refined my search terms - and the top search result was their contract.  Oh, it's a doozy.

This is buried down in paragraph 15: "By his/her execution of this agreement, the signer personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder."

There is no list of definitions, and I am not a lawyer, but the language elsewhere in the contract promises to provide advertising to the Customer, so I believe they mean the Customer is the company that is advertising.  Then the Signer is the poor schmuck who actually signs the contract. 

By signing, the employee is "personally and individually" taking responsibility for payment.  As in, if the company goes belly up, or if the company withholds payment for any reason (lousy performance, for instance), the poor schmuck employee has to pay for the yellowbook ad.
It gets worse.  By signing the contract, the "signer" agrees to 1) allow yellowbook to pull his/her personal credit report, and 2) mess up his/her personal credit score if the company doesn't pay - even if the employee doesn't work there any more. 

Here's the full text of the paragraphs I'm quoting, copy and pasted from on April 15, 2012.
"3. Credit: Signer authorizes Publisher to check credit history of signer and Customer with bank and trade references and business and/or consumer credit reporting agencies and further authorizes any such credit reporting agency to provide credit information about signer and/or Customer to Publisher. Signer and Customer agree that Publisher may share signer's and/or Customer's payment record with credit reporting agencies. Publisher has the right to establish credit limits and terms, require deposits, advance payments (e.g., 50% in advance, full payment in advance) or to cancel this agreement if Customer's or signer's, as the case may be, credit history proves to be unsatisfactory, in Publisher's sole, but commercially reasonable, discretion.

15. Authority; Persons Obligated; Signer Obligated: The signer agrees that he/she has the authority and is signing this agreement (1) in his/her individual capacity, (2) as a representative of the Customer, and (3) as a representative of the entity identified in the advertisement or for whose benefit the advertisement is being purchased (if the entity identified in the advertisement is not the same as the Customer or the signer). By his/her execution of this agreement, the signer personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder. "
I have never done business with YELLOWBOOK INC. (who advertises in yellow pages anymore, and why on earth would they choose "Yellow Book" instead of "Yellow Pages"??).  Now that I've read their contract - no way would I ever do business with them.

Why would a company that serves businesses need to sneak this employee-as-cosigner crap into a contract?  Is it because their service is so lousy that companies withhold payment?  Is it because their ads are so useless that a lot of their Customers go under?  In my experience, when a company has super-onerous payment terms, it's because they can't get payment under normal terms - i.e., deliver a good product or service, receive prompt payment, thanks, and referrals.
In Oregon, they're registered as YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC. (former name, now registered as YELLOWBOOK INC.).

Searching for info on this company, I started finding lawsuits by YellowBook/Yellow Book Sales and Distribution Company, appeals, people trying to fight to protect their personal credit and their personal assets because YellowBook came after them for their company's debt.  And I think that is just sick.  When I was a receptionist, I signed purchase contracts for my company.  I certainly couldn't afford to pay thousands of dollars for my company to advertise in - let's be honest - outdated phone books.  People are trying to pass laws making it possible to opt-out of receiving phone books.  A lot of people don't use phone books.  But the advertising companies fight to protect their right to fill our recycling bins with tons of wasted paper because they can make money selling ads that we'll never look at.

I don't think it's right for YellowBook to make employees personally responsible for paying their company's advertising fees using confusing legal jargon.  I don't think it's fair to pull an employee's credit report.  That can make it harder/more expensive for the employee to get credit, buy a house, etc. 

I now ask our state lawmakers to amend the law, requiring a separate legal document for an employee to personally become a co-signer on a company contract.  By making it a separate document, we could ensure that the employee intended to be a cosigner and that it is completely clear to them that they are putting their personal assets and credit on the line.

Here's a case where Yellow lost: “The statute of frauds requires that the essential terms and not every term of a contract be set forth therein․ The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale․ In order to be in compliance with the statute of frauds, therefore, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof․”  

There are enough lawsuits against YellowBook - on essentially the same issue, that the Signer did not intend to become a cosigner or to personally guarantee the advertising fees - that I believe that YellowBook's contract is confusing, and the mere fact of asking an employee to personally guarantee payment is so unusual and unexpected, that it requires enormously clear language and structure to ensure that the BOTH sides truly intend for that to happen.  It appears that Yellow amended its contract language after the case, above, to prevail in court, but also using enough legal jargon to continue to confuse "Signer"s.  Since most employees are not lawyers - and do not typically hire a lawyer for the mere execution of a common purchase contract - the language should be jargon-free and should warn the employee to consult an attorney if any part of the agreement is unclear.

This is a matter of justice, but it is also a matter of public policy, because the legal disputes that result end up clogging up the courts.  Also, I believe that any contract that obligates the employee personally should be interpreted under consumer law.  Yellow Book Inc. might argue that they try to contract with company owners and executives, but many small business owners lack the sophistication of a multi-national corporation's legal department or the funds to hire lawyers to vet every single purchase agreement.  Furthermore, if any rank and file employee is ever allowed to contract with YellowBook Inc. then their contract should either 1) provide a right to negotiate terms and remove the personal guarantee, or 2) contain terms and conditions that are equally fair to all Signers, from the receptionist to the President.  Since YellowBook Inc. has not undertaken these steps on their own, I believe that our lawmakers must correct this injustice through the legislative process.

No comments:

Post a Comment