Monthly Archives: November 2017

November 20, 2017

Draw Against Commissions: Keeping FLSA Minimum Wage and Overtime Violations At Bay

By Mark Wiletsky

Paying sales employees on a commission basis can achieve multiple goals. Salespersons have an incentive to increase sales to earn more money while the company sees higher revenues without being locked into a guaranteed pay structure for underperforming employees.

Although various types of commission structures may be used, a common one is a draw against commission. Typically, this type of pay structure means that a sales employee is paid solely on the basis of commissions, but may be advanced a certain amount of money known as a “draw” for weeks in which the employee fails to earn a certain level of commissions. Then, the draw is deducted from future commissions when the employee’s commissions exceed the expected level. It sounds easy, but such arrangements can be fraught with FLSA traps.

Illustrative Case

The Sixth Circuit Court of Appeals (whose decisions apply to Michigan, Ohio, Kentucky, and Tennessee) recently examined an employer’s draw-against-commissions policy to determine whether the policy violated the minimum wage and overtime requirements of the FLSA. In that case, current and former retail and sales employees of hhgregg, Inc. and Gregg Appliances filed a lawsuit claiming that hhgregg’s commission policy violated the FLSA and state law in numerous ways. Here is a summary of the policy at issue:

  • In pay periods when an employee’s earned commissions fell below the minimum wage, the employee would be paid a draw to meet the minimum-wage requirement
  • In a non-overtime week (i.e., the employee worked 40 or fewer hours), the draw equaled the difference between the minimum wage for each hour worked and the amount of commissions actually earned
  • In an overtime week (i.e., the employee worked more than 40 hours), the draw equaled the difference between one and one-half times the minimum wage for each hour worked and the amount of commissions actually earned
  • Draw payments were calculated on a weekly basis
  • The amount of the draw would be deducted from commissions earned in future weeks
  • An employee could be subject to discipline, including termination, if he or she received frequent draws or accumulated a high draw balance
  • Upon termination of employment, an employee with a draw balance was required to immediately pay the company any deficit.

Retail and Service Establishment Exemption

The FLSA exempts retail or service employees from the overtime pay requirement but only if (1) “the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable” under the FLSA, and (2) “more than half his compensation . . . represents commissions on goods or services.” This exemption does not relieve employers from meeting minimum wage obligations.

In the hhgregg case, the employer argued that the exemption applied. The Sixth Circuit disagreed, pointing to the allegation that the commission policy paid exactly the minimum hourly rate in a normal, nonovertime week, thereby failing to meet the exemption requirement that it be “in excess of one and one-half times the minimum hourly rate.” Because the exemption didn’t apply, hhgregg could not escape overtime pay obligations.

Deductions of Draws From Future Earnings Was Not An Illegal “Kick Back”

Under the FLSA, when an employee earns less in commissions than was advanced through a draw, the employer may deduct the excess amount from later commissions, if otherwise lawful. In the hhgregg case, the plaintiffs argued that the deductions were not “otherwise lawful” because the draws to meet the minimum wage were not delivered “free and clear,” as is required by DOL regulation. Plaintiffs argued that the draws were loans that the sales persons were expected to repay, functioning as an unlawful “kick back.”

The Sixth Circuit rejected the plaintiffs’ argument, finding that because the employees could keep the full amount of the draw at the time it was “delivered,” it was not an unlawful “kick back.” Thus, deducting the draw payments from future commissions did not violate the “free and clear” regulation.

Immediate Repayment Upon Termination

Plaintiffs alleged that making employees immediately pay the company any deficit in draws upon termination of employment violated the FLSA. On that claim, the Sixth Circuit agreed, at least to the extent of allowing the lawsuit to proceed. The Court looked to hhgregg’s written commission policy to find that the sales employees could reasonably believe that they would be liable to hhgregg for any unearned draw payments at the time of termination. Because that provision could violate the DOL regulation that minimum wage be provided “free and clear,” the Court held that plaintiffs alleged sufficient facts in their complaint to support their claim that the policy violated the FLSA.

Off-The-Clock Work

Plaintiffs further alleged that the company encouraged sales employees to attend required training and store meetings “off the clock” in violation of minimum wage and overtime requirements. Specifically, plaintiffs alleged that hhgregg managers approved of and sometimes encouraged sales persons to work “off the clock” to avoid incurring a higher draw.

hhgregg argued that any practice of off-the-clock work would not violate the FLSA because “by allegedly under-reporting working time in draw weeks and thereby lessening their draw payments, [plaintiffs] increased the amount of commission pay they subsequently received by the same amount.” Therefore, “the ‘off-the-clock’ work allegedly performed did not deprive them of pay; it simply shifted it to a different week.”

The Court rejected the company’s argument. Because the FLSA requires employers to pay the minimum wage for all hours worked on a week-by-week basis, an employer may not “shift” pay for hours worked to a future week. Therefore, the Court ruled that plaintiffs’ claim could continue.

Review Your Commission Policy

This recent draw-against-commission case highlights the FLSA issues that employers may face when implementing commission policies. If you use commission payments for any segment of your workforce, we recommend that you review your policy to confirm that it pays employees for all hours worked (e.g., no “off-the-clock” time). In addition, if you offer a draw against commissions, make certain that it meets your minimum wage and overtime pay obligations. Finally, if you rely on an FLSA exemption, such as the exemption for retail and service establishments, compare your commission policy to the exemption to ensure you meet the exemption test. Because this is a tricky area, consult with experienced counsel to resolve any questions or compliance concerns.

November 15, 2017

Faking Cancer Delivers Colorado Postal Worker A Criminal Record

By Steven T. Collis

A longtime Colorado postal worker faked a cancer diagnosis to get time off of work, and for nearly two years, she got away with it. Her charade was discovered, however, when she misspelled the name of her supposed physician in forged doctors’ notes she provided to her supervisor. An investigation by her employer revealed the extent of her ruse, and she was eventually indicted in federal court.

Although this case is an extreme example and not representative of most employees, it’s a good reminder that you should keep proper documentation and conduct a thorough investigation if you suspect an employee isn’t being honest about the need for medical leave.

Deception Begins

In 2015, Caroline Boyle of Highlands Ranch, Colorado informed her supervisor at the U.S. Postal Service (USPS) that she had recently been diagnosed with non-Hodgkins lymphoma and needed time off. Boyle, who had been employed at the USPS’s customer products and fulfillment category management center in Aurora for 25 years, had recently been denied a promotion.

Over the next 20 months, Boyle took 112 days of sick leave and was allowed to work part-time and attend frequent doctor visits. Her boss also permitted her to work from home and granted her paid administrative leave that did not count against her sick-leave balance.

Faked Doctors’ Notes Lead to Indictment

To support her need for time off and other accommodations for her claimed cancer, Boyle provided numerous doctors’ notes to her supervisor. One note stated that she was being treated for lymphoma at Anova Cancer Care in Lone Tree. That note included the purported signature of radiation oncologist Gregg Dickerson. She submitted another note purported to be from Rocky Mountain Cancer Centers in Lone Tree, signed by Dr. Ioana Hinshaw.

In June 2016, a supervisor became suspicious of Boyle’s cancer claim, prompting a USPS investigator to begin reviewing the doctors’ notes she had provided. The investigator found that Dickerson’s name was spelled incorrectly on the note.

The possible forgery caused the inspector to show the note to two Anova administrators, who stated that Boyle wasn’t a patient of the clinic or of Dickerson. They also said that the template of the note was wrong and didn’t include the doctor’s U.S. Drug Enforcement Agency (DEA) and medical license numbers. The inspector then checked with Rocky Mountain Cancer Centers and learned that Boyle wasn’t a patient of Hinshaw, either.

In March 2017, a federal grand jury indicted Boyle on felony counts of forged writings, wire fraud, and possession of false papers to defraud the United States.

Guilty Plea and Sentencing

In late April, Boyle pleaded guilty to the indictment as charged. According to the facts in her plea, after not being selected for a promotion, she decided to take some time off work by pretending to have cancer. She admitted she took substantial amounts of sick leave and received numerous other workplace accommodations despite not having non-Hodgkins lymphoma or any other type of cancer or serious illness. She also created the alleged doctors’ notes despite not being a patient of either doctor. She intended to keep up the cancer ruse until her scheduled retirement in April 2017, after which she planned to take a vacation to Hawaii. Based on the charges, she faced up to 10 years in prison and a fine of up to $250,000.

At the sentencing hearing, a former subordinate of Boyle’s, Lisa Roberts, testified that Boyle had essentially mimicked her cancer diagnosis and treatment. Roberts had worked at the Aurora postal center and reported to Boyle until 2012.

In 2010, Roberts began fighting non-Hodgkins lymphoma and needed time off for treatment. Boyle accused Roberts of faking cancer in order to take a long vacation, asking her why she didn’t lose her hair. Boyle demanded that she provide her confidential medical records, which she believed Boyle later used to fake a cancer diagnosis.

By the time Boyle claimed to have cancer, Roberts had lost her job in Aurora and moved to Texas. She returned to testify at Boyle’s sentencing hearing because she believed Boyle modeled her fake illness on her real cancer. She alleged that Boyle claimed to have the same type of cancer and to be receiving treatment at the same cancer centers, essentially using all of her medical information to create her fake illness. Roberts further stated that while Boyle was given wide-ranging accommodations for the fake cancer, she had denied similar accommodations to Roberts.

On August 22, 2017, federal judge Raymond Moore sentenced Boyle to five years’ probation with the first six months as in-home confinement wearing an electronic monitor. The judge also ordered her to pay a $10,000 fine and $20,798 in restitution. In perhaps the most fitting portion of the sentence, the judge ordered her to perform 652 hours of community service at a cancer treatment center, research facility, or hospice.

Lessons Learned

Most employees wouldn’t dream of fabricating a life-threatening illness in order to take advantage of sick leave and other employee benefits. But every once in a while, a dishonest manipulator may think he can get away with it.

If you become suspicious about an employee’s need for leave or question whether he or she really qualifies for an employee benefit, conduct an investigation. But be sure to do so within the confines of applicable law so that your investigation doesn’t result in unexpected liability – e.g., Family and Medical Leave Act (FMLA) interference, violation of privacy rights, or retaliation. In fact, if faced with a potential “fake” illness scenario, it’s best to consult with your employment counsel when you first suspect a problem.

November 6, 2017

Take Note: Benefit Plan Deadlines Approaching

By Molly Hobbs

At this time of year, important deadlines are quickly approaching for 401(k) plans and health and welfare plans. Here is a non-exhaustive list of significant employee benefit plan deadlines for the remainder of 2017 and early 2018. These deadlines are generally for calendar year plans, unless otherwise specified.

Retirement Plan Deadlines:

December 2

  • Distribute the following notices, as applicable, by December 2, 2017:
    • Traditional 401(k) Safe Harbor Notice
    • Qualified Automatic Contribution Arrangement (QACA) Notice
    • Eligible Automatic Contribution Arrangement (EACA) Notice
    • Non Safe-Harbor Automatic Contribution Arrangement Notice
    • Qualified Default Investment Alternatives (QDIA) Notice
  • Determine when the annual participant fee disclosure was last provided and timely provide the disclosure. The annual participant fee disclosure is required every 14 months. Many employers provide this disclosure on or before the end of the year along with other year end notices.

December 16

  • Provide summary annual report (SAR) to participants if the 2016 Form 5500 was filed by extension on or before October 16, 2017. For non-calendar year plans, the SAR must be provided two months after the Form 5500 was filed, including by approved extension.

December 31

  • Adopt any discretionary amendments implemented during the plan year.
  • Ensure all required minimum distributions have been paid to applicable participants.

January 2018

  • Provide non-discrimination testing census data to the record keeper or Third Party Administrator (TPA).

March 15, 2018

  • Make sure TPA has completed non-discrimination testing, and distribute any excess contributions, in order to avoid excise taxes.

April 16, 2018

  • Distribute any excess contributions and related earnings from prior year.
  • Make any employer contributions to retirement plan(s) in order to receive tax deduction (plus extensions).

Health and Welfare Plan Deadlines:

November 1

  • If the plan’s open enrollment is approaching, fix the starting and ending dates for open enrollment and prepare and distribute enrollment materials such as the Summary of Benefits and Coverage.
  • Marketplace/Exchange open enrollment begins.

November 15

  • If the plan is a self-funded health plan, submit the Transitional Reinsurance Program (TRP) Annual Enrollment and Contributions Submission Form, reporting the annual enrollment count and selecting a payment schedule. If the Plan elected in 2016 to pay the TRP fee in two installments, the second payment is also due by November 15, 2017.

December 15

  • Open enrollment for the Marketplace/Exchange coverage ends.

December 16

  • Provide summary annual report (SAR) to participants if the 2016 Form 5500 was filed by extension on or before October 16, 2017. For non-calendar year plans the SAR must be provided two months after the Form 5500 was filed, including by approved extension.

December 31

  • Provide the following annual notices, as applicable, by December 31, 2017:
    • Children’s Health Insurance Program (CHIP)
    • Women’s Health and Cancer Rights Act (WHCRA)
    • HIPAA Notice of Privacy Practices (at least every three years)
  • Many plan sponsors provide these notices with the annual open enrollment materials.

January 31, 2018

  • If the employer is subject to the ACA employer mandate, provide full-time employees with an IRS Form 1095-C documenting 2017 health coverage.

February 28 (March 31, if filing electronically)

  • If the employer is subject to the ACA employer mandate, file Form 1094-C and Forms 1095-C with the IRS.
Keep this deadline checklist handy to ensure that your plans remain compliant and as always, consult with your employee benefits counsel for additional information.