Given lack of software at office, jury could find bank knew employee worked OT at home
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Friday, October 6, 2017

Given lack of software at office, jury could find bank knew employee worked OT at home

By Lorene D. Park, J.D.

A federal district court in Illinois has denied PNC Bank’s motion for summary judgment on a financial sales consultant’s claim that it violated the FLSA and the Illinois Minimum Wage Law (IMWL) by failing to pay for overtime that it knew she was working from home. Though PNC described her overtime claim as “vague,” the court found it sufficiently supported with evidence that managers assigned her projects requiring the use of software she did not have at the office, forcing her to work at home, and she testified that her manager wanted her to “bury” her overtime hours. However, the employee’s claim for unpaid commissions under the Illinois Wage Payment and Collection Act (IWPCA) failed as a matter of law because, even though PNC may have agreed to pay commissions for sales referrals on products she was not licensed to sell, the offer letter modified that agreement and she accepted the modified plan when she started working for PNC (Suson v. PNC Bank, NA, October 3, 2017, Kennelly, M.).

Interview promises differed from offer letter. According to the employee, she was drawn away from her prior position with Chase Bank by promises PNC Bank made in her job interview for a financial sales consultant position. Most notably, the interviewers promised her that she would earn a commission for all sales of financial products that she referred to PNC, even if she didn’t possess the license required by federal regulations to sell those products directly. Based on what she perceived to be an agreement, she took the job.

However, her offer letter stated that sales awards would be administered under the incentive program standard for all PNC employees. She did not review the terms of the program after receiving the letter, but if she had she would have learned they were different from what she expected. Under the standard program, she was eligible only for awards on products she was licensed to sell. This excluded products that required a Series 7 or Series 65 license, neither of which the employee possessed.

Worked from home without compensation. The employee also claimed PNC failed to pay for overtime work she did at home. She claimed she had to work overtime at home because her workload was impossible to complete during normal hours and the office computer lacked necessary software. She also claimed PNC had promised to make time available during the workday to study for a Series 65 license, but she was constantly interrupted by customers. Her manager allegedly wanted her to “bury” her overtime to keep costs down at his branch.

IWPCA claim based on unpaid commissions. Granting summary judgment against the employee’s claim that PNC violated the IWPCA by withholding commission payments owed under the agreement made at her job interview, the court distinguished the broader term “agreement” from the term “contract.” It explained that, under Illinois law, an at-will employment contract may be modified because “continued performance by both parties serves as acceptance by one side and consideration by the other side.” Here, a jury could find that an agreement was formed during the interview, but the undisputed facts demonstrated that the letter of employment she received stated that compensation would be calculated using the standard program and the employee assented to the terms of the standard plan once she began work. The standard plan modified whatever broader agreement she entered into at the time she was hired.

Overtime claims based on work from home. On the other hand, the court denied summary judgment on the employee’s claims under the FLSA and IMWL that PNC failed to pay for overtime work of which it was aware. Though PNC described her overtime claim as “vague,” the court found it sufficiently supported with evidence that her managers had to know she was working from home because she was asked to complete projects that required the use of Microsoft Word and other tools that her office computer lacked. In addition, she testified that her manager wanted her to “bury” her overtime hours because they would go “against his cost center” and he didn’t want to go over budget. Moreover, she didn’t receive the “set-aside hours” to study at the bank for her licensure, which forced her to study at home.

The foregoing was enough for the jury to find she performed overtime work and PNC actually or constructively knew. This also raised a genuine factual dispute on PNC’s alleged reckless disregard for whether it violated the FLSA. Thus, while PNC argued that her claims should be limited to a two-year period, a jury would have to decide the appropriate limitations period.

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