Ruth Dixon and Andre Smith answered ads promising they’d earn $500 a week working for a Kirby vacuum cleaner distributor. But, they said, they never saw a cent, even after memorizing an elaborate sales pitch, driving hundreds of miles on their own dime, cleaning acres of carpet, and singing hymns of praise to Kirby at strobe-light-filled morning pep rallies.
That’s how New Haveners Dixon and Smith described their time working for SZ Enterprises, an Orange-based distributor of Kirby vacuum cleaners.
They’re two of eight plaintiffs in a federal lawsuit filed Monday against SZ, owner Scott Zabka, and the Kirby company.
The lawsuit alleges that SZ hired employees under false pretenses and then failed to pay them the wages they were owed. Those unlawful practices are a result of company policies set out by Kirby, a nationwide vacuum cleaner company, the lawsuit charges.
Scott Zabka, the owner of SZ Enterprises, declined to comment on the lawsuit. He said he had not yet had a chance to read the complaint.
Halle Haniewich, spokeswoman for Kirby, said the company was “not in a position to comment” as it had not yet been served with the complaint.
The company considers people like Dixon and Smith “independent contractors,” not “employees.” The dispute centers on that question—and whether the company was up front about the distinction.
Allegations of scams associated with Kirby vacuums have surfaced across the country. In November of last year, the state Department of Consumer Protection asked then-Attorney General Richard Blumenthal to investigate the company’s practices in Connecticut, including SZ Enterprises.
Earlier this month, the company settled with the state, agreeing to pay $25,000 and change some of its sales practices, according to a department press release. The company agreed to get written permission from a customer before starting a sales pitch, among other concessions. Click here to read all the details.
The case filed Monday is being handled by lawyers from New Haven Legal Assistance, who are looking to have it certified as a class action lawsuit. Legal aid staff attorney James Bhandary-Alexander said he thinks many more mistreated workers are out there,and could choose to join as plaintiffs on a class action suit. Read the complaint here.
On Tuesday afternoon, Smith and Dixon sat down at New Haven Legal Assistance’s State Street offices with Bhandary-Alexander and Susan Nofi-Bendici, deputy director of the organization, to discuss the case.
Here’s what they said happened to them at SZ Enterprises:
In August 2010 Dixon answered an ad in the New Haven Register from a company looking for “customer service representatives.” She showed up at the Orange offices of SZ Enterprises on a Tuesday and was told she would be making $500 a week, to start.
Dixon recalled being pleased to hear that figure, since she’d been unemployed for some time. Dixon, who’ll be 60 on June 23, had previously held a clerical job in the New York court system before moving to New Haven about a year ago.
Smith, a 46-year-old New Haven native, said he was also pleased with the promised salary when he joined in February 2011. He had been unemployed since 2008 following a kidney transplant. He was told that he’d be demonstrating Kirby vacuum cleaners in people’s homes and that he was guaranteed $500 per week for doing 15 demonstrations a week.
Smith and Dixon, who both live in Dixwell, both said they were told that investment guru Warren Buffett was either the CEO or president of the vacuum company, which went a long way towards selling them on the job.
“So we think we’re going to make millions and millions of dollars,” Smith said.
Dixon recalled wondering why the furniture in the office looked so “raggedy” but was reassured after hearing Buffett was in charge. “I said, ‘Let me hang in there.’”
A Buffett firm does have a distant ownership stake in Kirby, but the investor is certainly not president or CEO, Bhandary-Alexander said.
After signing on, Dixon and Smith both took part in several days of mandatory training, during which they were instructed in the “10-Step Demo Sequence,” an elaborate and detailed script that they were to follow when demonstrating—and trying to sell—Kirby vacuums.
It was like memorizing lines from a play, Dixon said. And it required a thespian’s flair for drama. Part of the sequence called for a side-by-side comparison of the homeowner’s current vacuum and the Kirby vacuum. After the old vacuum failed to perform, the script called for Dixon to drape a black cloth over it and adorn it with a single funereal rose.
After training, Smith and Dixon began to work 12-hour days, sometimes six days a week. Each shift would start with a mandatory meeting at the Orange office, where they would sing songs from a book of tunes about Kirby.
“‘Kirby, Kirby is the best! All the others are just less!’ Or something like that,” Smith recalled.
They also had to take part in chants like “We are POSITIVE!” Smith said.
The conference room where the meetings were held included a DJ stand. Occasionally the overhead lights would go out, a strobe light would come on, and hip-hop music would start pumping. Anyone who had made a sale the previous day would stand up, go to the front, have to dance to the music and then tell the room how they made their sale.
The tone was relentlessly upbeat. “It’s like a sorority, a little bit,” Smith said.
Dixon said it was like being “brainwashed.”
“It’s also a way of asserting their power,” Bhandary-Alexander said. The company can’t have expected that everyone was enjoying the loud music and chanting, he argued, but it forced the workers to pretend that they did. It was a way of saying, “‘You’ll sit here and listen and put a smile on your face,’” Bhandary-Alexander said.
After the morning meeting, work would begin. Sometimes that meant going out to distribute coupons. Other times it meant sitting around waiting to be given an appointment to demonstrate a vacuum cleaner.
Employees weren’t allowed to call ahead to homes they were sent to. Once in a home, they would spend two to three hours cleaning carpets, following their script precisely, and calling their manager throughout the demonstration to talk about the possibility of a sale. The manager could then authorize various discounts off the Kirby vacuum list price of $2,500. They were encouraged to get leads on possible buyers but not allowed to follow up on them: they had to turn over all phone numbers to the company.
These alleged facts are a key part of the case, which hinges on whether or not Smith and Dixon were independent contractors. They said they weren’t told they were at the time of hire. And they weren’t told the first time they asked about, and were denied, their paychecks. But the second time a promised payday came and went, after about three weeks, SZ told them they were independent contractors and not guaranteed a salary.
As for the guaranteed $500 for 15 weekly demonstrations, Smith and Dixon said they were never allowed to reach 15 per week.
They may have been “independent contractors” in name, but with no ability to make their own appointments or contacts, set their own schedules, negotiate their own prices, or even use their own words when talking to customers, they were anything but independent, Bhandary-Alexander argued.
Smith and Dixon said they were both encouraged to sell vacuums to their family and friends and to hand over lists of such contacts to the company. Smith sold one to his mother. With manager-approved discounts, including a trade-in for her brand-new Eureka vacuum, she bought the Kirby for $1,500 on a payment plan. Smith was given $200 for closing the deal but he later had to give it back when his mom couldn’t keep up with the monthly payments. She had to return the Kirby, but she never got her brand-new Eureka back, he said.
Later, when Smith shadowed a manager on a sales call, the manager offered to sell a Kirby vacuum to someone, not for $1500, but for only $800. “I’m looking at him like ‘What!?’” Smith recalled.
Smith and Dixon drove all over southern Connecticut for demonstrations and coupon distribution, using their own cars and paying for their own gas, with no reimbursement. Smith said he was required to drive all the way up to Holyoke, Mass., to make an appearance at a Kirby event honoring Zabka.
Dixon started to notice rapid turnover at the company. Each week he saw new faces in the morning meeting. Old ones disappeared.
After about three weeks, Dixon started listening to the nagging doubts she had been ignoring: “My angel had been talking to me all the time, saying something’s not right.”
Dixon decided she’d “been a fool long enough.” After three weeks without pay, she asked for her wages. She was offered a check for $25. She refused and left.
“You know you’ve been had,” she said. “I worked from Aug. 4th to Aug. 27th and never got a paycheck.”
“I Can’t Do This”
Smith lasted a month. He recalled his last day: trying to sell a vacuum to a 60-year-old man who was taking care of a 102-year-old woman. The man kept saying he had only $5 in the bank. Smith kept calling into the manager, with forced cheerfulness, and asking for discounts on the $2,500 vacuum the man could never afford. Suddenly he realized, “I can’t do this,” he said. “That was my last day.”
Dixon, the lead plaintiff on the case, was the first to start working with New Haven Legal Assistance. Through a complaint to the state Department of Labor, she was able to win some of the wages she said she’s owed, but not all of them.
Bhandary-Alexander said it remains to be seen just how much Dixon and Smith are owed. It depends what the court determines their employment arrangement was and whether they’re awarded double or even triple damages.
The suit alleges that the misbehavior doesn’t stop at the level of SZ Enterprises, but that it’s a result of an overt strategy by the Kirby company, one in which employees are an expendable resource.
“This model is being replicated all over the nation,” said Nofi-Bendici. The complaint alleges that “Kirby is directing and controlling these policies.”