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words of the script were prescribed by Combined, but the agent’s
“style”--i.e., the manner in which he made the delivery, his
overall demeanor, manner of dress, etc.--were left to the
discretion of the individual agent. The main purpose for using
the scripted presentation was to avoid misrepresentations of the
insurance products, and agents have been fired for
misrepresenting products. Nonetheless, Combined’s agents did not
always use the scripted presentation, and Combined’s senior
management was aware of this fact. Petitioner, at times, devised
his own presentations, rather than those scripted by Combined,
for use by the agents he supervised as well as in his own sales
work. Petitioner set his own hours and those of the agents he
supervised. For the sales agents he supervised, petitioner
decided which of Combined’s products to concentrate in, which mix
of new policies versus renewals to pursue, and the location in
the territory where each agent would do sales work, although the
territory itself was established by Combined.
Each of the insurance products that petitioner supervised
the sale of or sold had a fixed percentage commission, which was
set when the product was designed for all the agents selling it
in a particular State. The insurance agents’ sales commissions
were paid by Combined rather than by petitioner as district
manager. However, by controlling the routes and accounts
assigned to each agent, petitioner could significantly affect the
compensation of the agents he supervised.
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