The opinion of the court was delivered by: Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiffs, twenty-four current and former employees of Defendant
Corporate Cleaning Service, Inc., have filed this suit against
Corporate Cleaning and two decision-making employees, Neal Zucker and
Charles Adkins (all defendants will be referred to collectively as
CCS), seeking overtime pay allegedly due them under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the Illinois
Minimum Wage Law (IMWL), 820 ILCS 105/1 et seq. R. 121.*fn1
CCS argues that Plaintiffs are exempt from the overtime
provisions because employees are compensated by commission; this is
CCS's eleventh affirmative defense. R. 18 at 8.*fn2
CCS moved for
partial summary judgment based on the commission exemption, R.60, but
that motion was denied by Judge Dow, who was previously assigned to
this case. R. 113; Alvarado
v. Corporate Cleaning Services, 719 F. Supp. 2d 935 (N.D. Ill.
2010).*fn3 Plaintiffs now file a motion for partial
summary judgment on the same issue, arguing that the commission
exemption does not apply. R. 147. Because there is a genuine issue of
material fact regarding the commission exemption's applicability, the
motion is denied.
The facts of the case were thoroughly discussed in Judge Dow's earlier opinion denying Defendants' summary-judgment motion, albeit from the standpoint of taking the facts in the light most favorable to Plaintiffs. R. 113. Here, the Court recites those facts relevant to the present motion. Plaintiffs are or were window cleaners for CCS. PSOF ¶ 2. A project to clean windows is worth a certain number of "points," which are assigned by CCS based upon the size, complexity, and estimated time to complete a project. Id. ¶ 16. The time to complete a project is determined by the number of windows to be washed. Id. ¶¶ 18-19. If one washer completes the job, the washer receives all of the points that job was worth; the points are allocated if there are multiple cleaners. Id. ¶¶ 23. A worker is compensated by multiplying points earned by the washer's union rate. Id. ¶ 17. Thus, each project is worth a fixed amount of compensation. Some jobs took Plaintiffs more time to complete than had been estimated. Id. ¶ 21. Sometimes, if the time it takes to complete a project exceeds the number of points it is worth, CCS will increase the number of points it is worth to keep pay competitive. R. 157, DSOF ¶ 22. According to CCS, the client is billed by multiplying the number of points by a "fixed rate"and then making adjustments as circumstances may require. PSOF ¶ 32, DSOF ¶ 32.*fn4 Those adjustments include factors such as: cost of permits, equipment rentals, incidental expenses associated with a particular job, competitive market pressures, human error, and rounding. PSOF ¶ 34; DSOF ¶¶ 2, 11. With regard to employee compensation, CCS aims to allocate 48.5% of its net revenue to employee compensation, and was near that goal in 2005 through 2008. PSOF ¶ 35. CCS documents distributed to washers refer to the compensation plan as a "piece rate" plan, and does not use the word "commission." Id. ¶¶ 25-26, DSOF ¶¶ 25-26.
CCS moved for partial summary judgment, arguing that the compensation structure qualified as a commission system. R. 60. Although the FLSA requires that employees be paid 11/2 times their hourly wage for every hour worked in excess of forty hours per workweek, 29 U.S.C. § 207(a)(1), Congress exempted certain employees from that overtime pay rule, including employees who meet all three of the following criteria: (1) work in a retail or service establishment; (2) are paid a wage that exceeds 11/2 times the minimum wage; and (3) receive more than half of their compensation in the form of "commissions for goods or services." 29 U.S.C. § 207(i).*fn5
In deciding CCS's motion, the Court held that CCS had established the first two elements for the exemption, namely, that Plaintiffs are paid a wage that exceeds 11/2 times the minimum wage and are employed in a retail or service establishment. R. 113 at 8-17. But the Court held that there was a genuine issue as to whether Plaintiffs are paid a commission. Id. at 17-23. After reviewing the "sparse" law on the question, id. at 17, the Court ultimately concluded that "disputes of material fact exist regarding the existence of the requisite nexus between the number of points assigned to a job (a proxy for employee compensation) and net revenue (a proxy for the amount that customers are charged for labor)." Id. at 22. The Court noted that "[a] number of factors point in the direction of a conclusion that CCS employs a bona fide commission system," and that "from a macro level, the evidence appears to demonstrate a relationship between compensation and the price of labor to customers." R. 113, 22. But the Court also noted numerous transactions where CCS appeared not to have adhered to its claimed billing practice, and CCS's explanation for the outliers was not sufficient to justify summary judgment. Id. Now, Plaintiffs move for partial summary judgment on the non-applicability of the commission exemption.*fn6
Summary judgment should be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.
In light of the opinion denying CCS's motion for partial summary judgment, the only element of the commission exemption that is at issue is whether the employees receive more than half of their pay on a commission of goods or services. Neither the FLSA nor regulations define "commission." The Seventh Circuit did extensively discuss, however, the meaning of commission in Yi v. Sterling Collision Centers, Inc., 480 F.3d 505, 508 (7th Cir. 2007). There need not be a rigid mathematical correlation between compensation and sales. Id. On the contrary, "the essence of a commission is that it bases compensation on sales," and decouples time worked from compensation. Id. (emphasis added). Judge Dow's opinion cited other courts that have found a commission without a strict correlation, so long as there is "some amount of proportionality" between compensation and sales. R. 113 at 19 (citing Parker v. Nutrisystem, 2009 WL 2358623, at *8 (E.D. Pa. 2009)). Therefore, Plaintiffs would be entitled to summary judgment if, when viewed in the light most favorable to CCS, the evidence and the reasonable inferences that may be drawn from the evidence do not establish that the compensation paid to Plaintiffs is based on, or has some amount of proportionality with, CCS's sales, such that no reasonable fact-finder could return a verdict for CCS.
Plaintiffs first argue that an analysis of CCS's work performed between 2004 and 2008 establishes that the washers' compensation is not a commission. Plaintiffs use the words "proportional" and "linked," and Judge Dow's opinion used the words "nexus," "relationship," and "proportion." What the parties and Court are expressing is the idea that, if CCS's claims are true and the employees are compensated via a commission system, there should be some relationship between the amount customers are charged and the amount washers are compensated. That relationship would arise from the fact that both figures are determined based upon the points a project is worth. If CCS's arguments are accurate, that CCS does charge a fixed rate, then two projects that both cost $1,000 dollars would be expected to be roughly the same number of points. Similarly, dividing the amount charged for a project by the number of points allocated to that project should yield the same fixed rate across all of CCS projects. The numbers would not be exact, for various reasons, PSOF ¶ 34, but, if CCS does in fact pay via commission, there would be a noticeable trend in the numbers. Plaintiffs argue that fuller analysis of CCS's records that were not available for the original motion for partial summary judgment show that there is no trend, and that the "evidence in this case overwhelmingly establishes that Plaintiffs' compensation is not proportional, linked, and otherwise has no statistical relationship to [CCS's sales]."
The first data set Plaintiffs rely on divides the amount CCS charged customers by the number of points assigned to the project to determine how much customers are charged per point. Id. 7. If CCS's allegations are true, the price per point should trend toward the fixed rate. The data show that the price per point rarely works out to the exact fixed rate (although it notably does on some occasions), id., but if one evaluates the data with a 15% variation to either side of the fixed price, then anywhere from 50-57% of the transactions, depending on the year, fall within that range of the fixed rate. At least some of that variation can be explained due to CCS's rounding practices. For example, if the price of a service is calculated to be $215, then CCS will round up and charge the client $225. R. 158 ¶ 15. This practice alone will account for some of the skew in Plaintiffs' calculation. Moreover, rounding is just one of several explanations that CCS has provided that could also skew Plaintiffs' calculations. These other factors include: billing increases for inflation, a heightened price charged for construction jobs, and price adjustments downward to stay competitive. R. 158 ¶¶ 17-19. Additionally, it is difficult to evaluate the full weight of Plaintiffs' calculations because of its presentation. Plaintiffs have broken transactions in to five categories: (1) those transactions in which the price per point was almost exactly the fixed rate; (2) and (3) the price per point falls within 15% in either direction from the fixed rate; and (4) and (5) all the rest. It may be that the rest ...