Can a company I am contracted to make me pay back affiliate commission?

Ash027

Hello everyone!

(I apologise - In my quest to get all of the necessary information out, this post turned out a little longer than I had hoped).

I'm wondering if anybody is able to help me wrap my head around a situation I've found myself in. I believe the company I am contracted by is making an unlawful request of me, but I'm interested in seeing what others think and getting some advice.

Context

• I am contracted by a multi-million pound corporation in the technology sector as a freelancer.
• I work remotely from home because I am also a carer for a family member.
• I am tasked with writing, maintaining, and updating marketing and technical documentation for the company employees and their customers.
• The company provides everyone, including customers, contractors, and employees, with an affiliate link to help the company to drive new customers and sales to them and to reward those who help to do this.
• New customers who make a purchase at the company through the affiliate link the company provides will reward the referrer a percentage of the sale.
• The pay without affiliate referrals is terrible, but I need the work.

The Details

• On a freelancer contract, I write and upkeep a large company's marketing, technical, and help documentation. Some of it which is for customers, some for employees, and a little bit for company partnerships.
  
  
• The company provides everyone (staff & freelancers included) with an affiliate link that allows people to be rewarded for drawing new customers to the website. I enquired with an employed manager at the company if it would be permissible for me to include the affiliate link that the company provided me with in a page or two of the online customer documentation that I was tasked with upkeeping. This manager assured me that it would be perfectly fine to do this, and that I should see it as an extra incentive or bonus for helping the company attract new customers by keeping their documentation up to date.
  
  
• With the manager's blessing, I included my affiliate link in some of the company's public documentation. It wasn't spammed relentlessly, mind you, it was placed in a visible but non-intrusive place on the page where the reader had the full freedom of choice whether they wanted to click it or not.
  
  
• I also used my affiliate link (where permitted) in other third-party communities that have nothing to do with the company, like technology discussion forums, technology chat groups, and so on. Overall there are hundreds of thousands of people in these communities.
  
  
• To be fair, it seemed like a waste of time at first, generating only a few pennies here and there (typical?). But then lockdown happened and all of the sudden everyone was practically packed onto the internet like sardines. More and more people began reading the online marketing and technical documents that I produced for the company. More and more people also began using the third-party communities that the company has no control over.
  
  
• My affiliate rewards came rolling in, and I was making roughly between £200 and £300 commission in each of the company's promoted sales from driving new customers to the company through the affiliate link. I carefully planned to put this extra money to good use, like spending it on things for the family member that I am the carer for, as well as for extra help with things like bills and food costs. I became one of the company's top 5 referrers of new customers (#4 specifically).

Fast Forward

• The manager who initially gave me the approval to use my company-provided affiliate link has since left the company to join a new one - I'm not sure where.
  
  
• A C-level (executive level) employee of this company (who I heard on the grapevine gets over a £1,000,000 salary a year, not proven), recently approached me and mentioned that they're aware I am one of the top company affiliates who has driven a lot of new customers and sales to the company. However, because I had included my affiliate link in the documentation that I was maintaining, I was told that I would need to pay back every single penny that I got through the affiliate link.
  
  
• I was not offered my right to put in a defence or explanation. Nor was there any form of a proper internal investigation to find out how I rose to become one of the company's top affiliates. He had pretty much made up his mind there and then. I explained that the very nice manager I had spoken to not only gave their clear consent and approval, but also encouraged me to use the affiliate link in the documentation as an extra bonus for being the only person, freelance or employed, at the company who kept everything up to date (and being the only person who really knew how to maintain the technical documentation platform they use - yeah, seriously).
  
  
• The C-level person said that I should not have been making an affiliate's profit from the customers that I drive to the company's sales. So I questioned that if this is the case, why does the company give all their employees and contractors an affiliate link to use? Other employees and contractors are freely using their affiliate links in company property too, like email signatures for one example.
  
  
• I also pointed out that my affiliate link was also shared in other third-party communities that have absolutely nothing to do with the company - so even if using my affiliate link within the technical documents was disallowed, not all of the referrals came from that source, therefore there's no way I'd be required to pay back the entire thing.
  
  
• My contract with the company does not state any restrictions at all when it comes to the use of an affiliate link. It does state that I "...shall be solely responsible for determining the method, details and means of performing the Services." Nowhere in the company policy does it enforce restrictions on where people can or can't use their affiliate links either. In my mind, the C-level person has just made up a new rule on the spot and I'm the only person in the wrong.
  
  
• Also in my mind, the C-level person cannot lawfully require me to pay back all of the affiliate earnings, because it was commission from drawing in new paying customers to the business, from across multiple locations over the internet.

In learning that I have connections to communities of hundreds of thousands of people where I have also been using my affiliate link and therefore cannot possibly be required to return the entire sum since those communities are nothing to do with the company, the C-level person has given me the opportunity to "make a proposal". This multi-million pound technology company cannot even track the source of where a customer clicked a person's affiliate link. I'm pretty sure most other companies would have been elated that I was drawing in so many new customers to them.

I'd be grateful for any advice or words of wisdom that anyone can give. I can see the following options personally:

• Negotiate and agree to a lowered amount of the affiliate earnings to be paid back, because much of the affiliate commission came from third-party communities. Despite the fact there's no contract, terms, or policy at the company that states I'm required to pay any back nor restricting where the links can be used.
  
• Outright refuse to repay anything, because my contract does not outline any restrictions for using the company-provided affiliate links, and the company cannot prove exactly how many of the referrals were from which source, many clicks I know were from third-party communities the company has no involvement with.
• Make a cup of tea, then put into writing a declaration that I am formally terminating my contract with the company because the C-level person has violated my contract by trying to force me to repay my affiliate commission, when the contract and company terms does not specify that they have any right to do that, nor outline restrictions for its usage.

Thank you for taking the time to read this novella. I never intended my first forum post to be this long, but all the little details might or might not be important. I appreciate your time.

Savvy_Sue

If you go for the cup of tea, will you be able to find alternative work easily enough?

If you did leave, presumably you'd no longer be entitled to use the link. How hard would it be to remove it? From everywhere ...

Who would you be making your proposal to? Mine might be to offer to return any commission which the company can establish you were not entitled to. Since you were using the link in good faith, and they don't know where clicks were generated, that's a very small number, no?

But I have no experience in this area. Do you have any legal cover on your household insurance? Presumably not a union member?

theoretica

I would consider proposing that the company produce a clear and  universal policy about where the affiliate link may and may not be used, and that you will of course adhere to it once it has been formally added to the company's handbook and contracts.

Marcon

Ash027 said:

Hello everyone!

(I apologise - In my quest to get all of the necessary information out, this post turned out a little longer than I had hoped).

I'm wondering if anybody is able to help me wrap my head around a situation I've found myself in. I believe the company I am contracted by is making an unlawful request of me, but I'm interested in seeing what others think and getting some advice.

Context

• I am contracted by a multi-million pound corporation in the technology sector as a freelancer.
• I work remotely from home because I am also a carer for a family member.
• I am tasked with writing, maintaining, and updating marketing and technical documentation for the company employees and their customers.
• The company provides everyone, including customers, contractors, and employees, with an affiliate link to help the company to drive new customers and sales to them and to reward those who help to do this.
• New customers who make a purchase at the company through the affiliate link the company provides will reward the referrer a percentage of the sale.
• The pay without affiliate referrals is terrible, but I need the work.

The Details

• On a freelancer contract, I write and upkeep a large company's marketing, technical, and help documentation. Some of it which is for customers, some for employees, and a little bit for company partnerships.
  
  
• The company provides everyone (staff & freelancers included) with an affiliate link that allows people to be rewarded for drawing new customers to the website. I enquired with an employed manager at the company if it would be permissible for me to include the affiliate link that the company provided me with in a page or two of the online customer documentation that I was tasked with upkeeping. This manager assured me that it would be perfectly fine to do this, and that I should see it as an extra incentive or bonus for helping the company attract new customers by keeping their documentation up to date.
  
  
• With the manager's blessing, I included my affiliate link in some of the company's public documentation. It wasn't spammed relentlessly, mind you, it was placed in a visible but non-intrusive place on the page where the reader had the full freedom of choice whether they wanted to click it or not.
  
  
• I also used my affiliate link (where permitted) in other third-party communities that have nothing to do with the company, like technology discussion forums, technology chat groups, and so on. Overall there are hundreds of thousands of people in these communities.
  
  
• To be fair, it seemed like a waste of time at first, generating only a few pennies here and there (typical?). But then lockdown happened and all of the sudden everyone was practically packed onto the internet like sardines. More and more people began reading the online marketing and technical documents that I produced for the company. More and more people also began using the third-party communities that the company has no control over.
  
  
• My affiliate rewards came rolling in, and I was making roughly between £200 and £300 commission in each of the company's promoted sales from driving new customers to the company through the affiliate link. I carefully planned to put this extra money to good use, like spending it on things for the family member that I am the carer for, as well as for extra help with things like bills and food costs. I became one of the company's top 5 referrers of new customers (#4 specifically).

Fast Forward

• The manager who initially gave me the approval to use my company-provided affiliate link has since left the company to join a new one - I'm not sure where.
  
  
• A C-level (executive level) employee of this company (who I heard on the grapevine gets over a £1,000,000 salary a year, not proven), recently approached me and mentioned that they're aware I am one of the top company affiliates who has driven a lot of new customers and sales to the company. However, because I had included my affiliate link in the documentation that I was maintaining, I was told that I would need to pay back every single penny that I got through the affiliate link.
  
  
• I was not offered my right to put in a defence or explanation. Nor was there any form of a proper internal investigation to find out how I rose to become one of the company's top affiliates. He had pretty much made up his mind there and then. I explained that the very nice manager I had spoken to not only gave their clear consent and approval, but also encouraged me to use the affiliate link in the documentation as an extra bonus for being the only person, freelance or employed, at the company who kept everything up to date (and being the only person who really knew how to maintain the technical documentation platform they use - yeah, seriously).
  
  
• The C-level person said that I should not have been making an affiliate's profit from the customers that I drive to the company's sales. So I questioned that if this is the case, why does the company give all their employees and contractors an affiliate link to use? Other employees and contractors are freely using their affiliate links in company property too, like email signatures for one example.
  
  
• I also pointed out that my affiliate link was also shared in other third-party communities that have absolutely nothing to do with the company - so even if using my affiliate link within the technical documents was disallowed, not all of the referrals came from that source, therefore there's no way I'd be required to pay back the entire thing.
  
  
• My contract with the company does not state any restrictions at all when it comes to the use of an affiliate link. It does state that I "...shall be solely responsible for determining the method, details and means of performing the Services." Nowhere in the company policy does it enforce restrictions on where people can or can't use their affiliate links either. In my mind, the C-level person has just made up a new rule on the spot and I'm the only person in the wrong.
  
  
• Also in my mind, the C-level person cannot lawfully require me to pay back all of the affiliate earnings, because it was commission from drawing in new paying customers to the business, from across multiple locations over the internet.

In learning that I have connections to communities of hundreds of thousands of people where I have also been using my affiliate link and therefore cannot possibly be required to return the entire sum since those communities are nothing to do with the company, the C-level person has given me the opportunity to "make a proposal". This multi-million pound technology company cannot even track the source of where a customer clicked a person's affiliate link. I'm pretty sure most other companies would have been elated that I was drawing in so many new customers to them.

I'd be grateful for any advice or words of wisdom that anyone can give. I can see the following options personally:

• Negotiate and agree to a lowered amount of the affiliate earnings to be paid back, because much of the affiliate commission came from third-party communities. Despite the fact there's no contract, terms, or policy at the company that states I'm required to pay any back nor restricting where the links can be used.
  
• Outright refuse to repay anything, because my contract does not outline any restrictions for using the company-provided affiliate links, and the company cannot prove exactly how many of the referrals were from which source, many clicks I know were from third-party communities the company has no involvement with.
• Make a cup of tea, then put into writing a declaration that I am formally terminating my contract with the company because the C-level person has violated my contract by trying to force me to repay my affiliate commission, when the contract and company terms does not specify that they have any right to do that, nor outline restrictions for its usage.

Thank you for taking the time to read this novella. I never intended my first forum post to be this long, but all the little details might or might not be important. I appreciate your time.

Option 4: get some proper (paid for) legal advice. You can't afford not to when you are up against a company of this size and the matter has clearly become extremely contentious. Without seeing all relevant documentation, specimen links etc nobody here can give you any sensible, well informed advice based on a full understanding of the position.

Diamandis

To me it's blatantly obvious that putting your affiliate link in the company's online customer documentation that you maintain is something that should never have happened. I'm surprised anyone would have ever asked to do this tbh, never mind this being approved by someone else. 

It would be like working in the social media team for a business and instead of using the normal website link to drive customers, using your affiliate link.

DullGreyGuy

Are you sure the affiliate link is tied to your employment/relationship with them? If so the terms of it should be in your contract including circumstances where they could clawback etc.

Affiliate links are normally fairly open to most people that want to use them and so they would have independent T&Cs so you'd then need to read both sets of T&Cs. 

Presumably you have Professional Indemnity insurance as a freelancer? Certainly its one for speaking to them

ACG

I can see why they would not want to pay you for referrals from their own documentation. Why would they pay you referral commission for that? Your not generating them any extra income with those clicks, they would get it anyway. 

Can they claim it back legally? I dont know the answer, but they may take you to court and try to get it all back. They may win, they may not. Do you want to take the risk? 

Why not get a different referral code for the links on their paperwork and keep your one for the stuff you do elsewhere. Give it 2 months and see what split comes from each and then agree to pay back the percentage that comes through their documentation? 

Ath_Wat

Diamandis said:

To me it's blatantly obvious that putting your affiliate link in the company's online customer documentation that you maintain is something that should never have happened. I'm surprised anyone would have ever asked to do this tbh, never mind this being approved by someone else. 

It would be like working in the social media team for a business and instead of using the normal website link to drive customers, using your affiliate link.

I would agree with this, on the face of it.  Your affiliate link is for your website, unconnected with the company.

If the company's website  designer, for example, uses their affiliate link for internal navigation on the company's website, that is obviously ridiculous.  I would see putting it into company documentation as exactly the same.  They are already dealing with the company in that they are reading their documentation, you are not driving them to the company at all.

However, if you were told you could do this by somebody with sufficient authority to do so, and can prove this, then you certainly need proper legal advice.

Whichever way, your ire at the management person (regardless of how much they do or do not get paid) seems misplaced.  They are just doing their job.  At the very least they need to stop you doing this going forward; and their automatic assumption would be you were not entitled to do this in the first place; although you may be able to prove otherwise.

tightauldgit

My initial thoughts are that including the affiliate link in company documentation is something that shouldn't have happened. It sounds unprofessional at a minimum. However, given that you got permission to do it from a manager within the company I don't see how its your fault or how they can ask for the money back now. 

The affiliate links elsewhere seem perfectly fine to me. 

I'd carefully check anything that's written down about the usage of the links and see that you are complying with any rules. 

If I was in this position I would go back to them and say that you can see why they feel that the affiliate links in company documentation may not be the right approach and you are happy to remove them but you were given clear permission by the company to do so and will not be refunding them any money made so far. I'd then ask them to clarify exactly what the rules are with respect to the affiliate links.

If they are insisting that they don't want you to use the affiliate links AT ALL any more then that's probably legal and above board and you can decide if it's worth working for them going forward, but I don't see how they can ask you to refund money already paid unless they can show you clearly where its stipulated that they can and what rules were broken. 

Ath_Wat

tightauldgit said:

My initial thoughts are that including the affiliate link in company documentation is something that shouldn't have happened. It sounds unprofessional at a minimum. However, given that you got permission to do it from a manager within the company I don't see how its your fault or how they can ask for the money back now. 

How they can ask for the money back now is if the OP, as they seem to imply, has no proof at all that anyone within the company asked them to do it.

silvercar

ACG said:

Why not get a different referral code for the links on their paperwork and keep your one for the stuff you do elsewhere. Give it 2 months and see what split comes from each and then agree to pay back the percentage that comes through their documentation? 

This is the answer going forward and a fair way of calculating commissions up to now.