MONDAY MORNING MINUTE: October 7, 2019

Monday Morning Minute

In This Issue

Salary Draw True Ups Draw a Victory from Seventh Circuit (A Must Read if You Have a Sales Force)

NFL is Sued for ADA(AA) Discrimination by New York Jets' Safety

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October 7 , 2019

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SEVENTH CIRCUIT COURT OF APPEALS AIDS AIDS ILLINOIS EMPLOYERS PAYING SALARY DRAW TRUE UPS

A recent decision from the Seventh Circuit Court of Appeals, interpreting the Illinois Wage Payment and Collection Act ("Act"), provides helpful guidance to employers reconciling earn compensation from employees paid advanced draw payments which do not meet their revenue obligations under their compensation agreements. In this case, the employer paid its salespersons a fix "draw" each pay period even when the salesperson earned less than the equivalent amount in sales commissions. The employer recovered any shortfall between actual earned commissions and the advanced draw in later pay periods, provided its sales employees earned in excess of fixed draw in later pay periods.

A disgruntled salesperson brought suit under the Act as a class action alleging it was an unlawful "deduction" under the terms of the Act because it provided for deductions in excess of 15% wage earnings cap, without proper salesperson authorization. The court rejected the salesperson's argument, concluding that the term "deduction" refers to withholdings from an employee's earnings such as for insurance, or taxes, etc., and not the employer's method of determining a salesperson's compensation earned under a fixed draw compensation plan. In support of this conclusion, the court noted that the salesperson's paycheck receipt confirmed this understanding: the draw payments and reconciliations appeared as itemized reconciliations under "Earnings" and not under "Deductions."

Employers who pay fixed draw commissions to salespersons should evaluation their payment scheme to avoid liability under the IWPCA: 1) have a written commission agreement that both the employer and the employee sign and that explains in plain, clear language the terms of the compensation systems; 2) record any commission reconciliations as earnings, and not as deductions from compensation; 3) record the number of hours their working per compensation period; 4) comply in all respects with Illinois' Minimum Wage Act; and 5) comply in with the federal overtime regulations that govern exemption from overtime for sales persons.

Call Spognardi Baiocchi LLP if you need assistance with your human resources and compensation analysis needs.

JETS PLAYER SUES NFL ALLEGING ADA(AA) VIOLATION

New York Jets safety Rontez Miles has filed a lawsuit against the NFL alleging that a referee violated the ADA (AA) when he forced him to remove his helmet visor during a game against the Detroit Lions.

Miles suffers from alopecia areata, an autoimmune skin disorder that causes photosensitivity and photophobia in the eyes. A tinted helmet visor has been used by Miles throughout his career to reduce ocular photosensitivity, but tinted visors have been banned in the NFL since 1998. However, these visors are allowed for players with certain medical conditions.

Miles' suit further alleges that he told the referee about the condition, but the referee still ordered the removal of the visor. During the game (and after removing the visor) he was injured in a collision with an opposing player as a Detroit Lions offensive lineman's hand went through Miles' facemask and struck him, breaking his eye socket. Miles' suit alleges that this collision occurred because he was not able to see the player without his visor and was left without the ability to defend himself. The lawsuit was originally filed in a New Jersey state court, but the NFL removed the case to federal court.

Regardless of the facts or outcome of this lawsuit, the Monday Morning Minute is doing some "Monday Morning Quarterbacking" and reminding Employers to use common sense when it comes to accommodating employees who have a disability and remember with the advent of ADA being amended, many more things are considered a disability under the law.

SPOGNARDI BAIOCCHI LLP is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business. Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs.

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.

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DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and should not be construed as legal advice applicable to your particular situation. No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and seek professional advice.