Atkins et al v. AT&T Mobility Services, LLC

Filing 62

MEMORANDUM OPINION AND ORDER: The court GRANTS defendant's 23 MOTION for Reconsideration; DENIES plaintiffs' 42 MOTION for Partial Summary Judgment; and DENIES defendant's 43 MOTION for Summary Judgment. Signed by Senior District Judge John T. Copenhaver, Jr. on 6/1/2020. (cc: counsel of record and any unrepresented parties) (arb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOSEPH ATKINS,
JUSTIN ROACH, and
JAMES HULL, individually,
and on behalf of a class
of similarly-situated persons,
Plaintiffs,
v.

Civil Action No. 2:18-cv-00599

AT&T MOBILITY SERVICES, LLC,
Defendant.
MEMORANDUM OPINION & ORDER
Pending are the defendant’s motion to reconsider the
state circuit court order that denied the defendant’s state
court motion for summary judgment, filed in this court on
February 1, 2019; the plaintiffs’ motion for partial summary
judgment, filed on September 4, 2019; and the defendant’s motion
for summary judgment, filed on September 4, 2019.

I.

A.

Background

Factual Background

This putative class action was initiated in the
Circuit Court for Kanawha County, West Virginia on September 15,
2015 and removed to this court on April 23, 2018.

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Plaintiffs Joseph Atkins, James Hull, and Justin Roach
were employed in a retail sales capacity by defendant AT&T
Mobility Services, LLC (“AT&T”) during the period between
September 2010 and September 2015. 1
Summ. J. Mem.”) at 5.

ECF No. 45 (“Pls.’ Partial

The plaintiffs were compensated by hourly

wages regardless of sales activity and by commissions for
selling products and services.
Mem.”) at 3–4.
commissions.

ECF No. 24 (“Def.’s Reconsider

The focus of the motions is on the sales

Each named plaintiff voluntarily left employment

with AT&T: plaintiff Atkins left in October 2011, plaintiff Hull
left in December 2012, and plaintiff Roach left in April 2013.
Pls.’ Partial Summ. J. Mem. at 5-6.
During the period between September 2010 and September
2015, AT&T maintained and administered retail sales compensation
plans, which described how AT&T calculated and paid sales
commissions to employees in a retail sales capacity.
Reconsider Mem. at 4.

Def.’s

According to the terms of these retail

sales compensation plans, the plaintiffs would not earn a
commission on a given sale at the time of the sale.

Id. at 5.

Rather, each sale had to complete a 180-day “Vesting Period” for

1

The time period is based on the proposed class definition for
employees who were employed by AT&T within five years of the
filing of the complaint. The complaint was filed in the state
circuit court in September 2015, so the proposed time period
would cover September 2010 to September 2015.
2

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the plaintiffs to earn a commission on the sale.

Id.

If a

customer returned the product or cancelled the service that a
plaintiff had sold within the 180-day period, then the plaintiff
would not earn a commission on that sale.

Id.

However, AT&T

advanced commission payments to the plaintiffs on a monthly
basis as part of a regular commission cycle for the sales
activity of the previous month, regardless of the 180-day
Vesting Period.

Id.

Each commission payment made to the

plaintiffs was an advance for sales that had not yet completed
the Vesting Period.

Id.

AT&T says that it paid the commission

advances to employees in the employees’ “regular paychecks
following the second pay period of each month.”

See id. at 5-6.

AT&T would apply a “chargeback” to the plaintiffs in
order to account for sales that did not successfully complete
the Vesting Period but for which AT&T had already advanced a
commission to the plaintiffs.

Id. at 6.

For any returned

product or cancelled service that occurred in a given month,
AT&T would apply a “chargeback” to the next month’s commission
advance.

See id.

The AT&T sales compensation plans define a

“chargeback” as a deduction from “Commissionable Sales activity”
of an employee due to the return of the product or the
cancellation of the service before the completion of the 180-day
Vesting Period.

See ECF No. 23-5, Ex. 5 (“AT&T Plan”) at 42.

3

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The plans also define a “chargeback” as “a deduction from Gross
Sales activity.”

See id. at 3.

The purpose of these

“chargebacks” was to reimburse AT&T.

See id. at 44.

The

“chargebacks” reduced the amount of commission that AT&T
advanced to the plaintiffs each month, but AT&T alleges that
these deductions did not reduce the earned commissions (i.e.,
the commissions that had successfully completed the 180-day
Vesting Period).

Def.’s Reconsider Mem. at 6.

AT&T periodically amended the sales compensation plans
during the period of September 2010 and September 2015. 2
4.

Id. at

Retail sales employees, including the plaintiffs, received

training on each amended plan and submitted an acknowledgement
that they understood the amended plan after each training. 3

Id.

These employees were not eligible to receive commission payments
until they completed the training for each amended sales

2

AT&T maintains that the retail sales compensation plans
applicable to the plaintiffs during this time period were “in
all relevant respects, identical to the manner in which
Plaintiffs earned, and [AT&T] calculated and paid, sales
commissions.” Def.’s Reconsider Mem. at 4. The plaintiffs do
not dispute this claim. In fact, both parties provide the same
plan from April 1, 2011 as an exhibit for their own motions. See
ECF No. 23-5, Ex. 5 (exhibit to AT&T’s motion to reconsider);
ECF No. 42-4, Ex. D (exhibit to the plaintiffs’ motion for
partial summary judgment).
3

Employees “signed” the acknowledgment through a computer
program. ECF No. 23-1, Ex. 1, Tr. at 16:1-23 (deposition of
plaintiff Joseph Atkins); Ex. ECF No. 42-5, Ex. E, Tr. at 33:312 (deposition of Donna Norwood-Cooper).
4

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compensation plan and submitted an acknowledgment, which
authorized AT&T to deduct “chargebacks” from the employee’s
commission payments.
Opp.”) at 7.

See id.; ECF No. 28 (“Pls.’ Reconsider

No notary public, or other officer authorized to

take acknowledgments, was present to witness an employee’s
acknowledgment of the terms or conditions of commission
payments.

Pls.’ Reconsider Opp. at 7.

The lack of an officer

authorized to take acknowledgments forms part of the basis of
the plaintiffs’ claim of a violation of the West Virginia Wage
Payment and Collection Act.
The two-count complaint in this case alleges two
violations of the West Virginia Wage Payment and Collection Act
(“WPCA”), W. Va. Code § 21-5-1 et seq.

Count One alleges that

the “chargeback” process implemented by AT&T constitutes an
assignment of wages to AT&T for which AT&T never obtained a
valid wage assignment from the plaintiffs, as required by the
WPCA.

See ECF No. 1-1, Ex. 1-1 (“Compl.”) ¶¶ 13–23, 41–44.

Under the WPCA, a valid wage assignment requires an employee’s
acknowledgment of understanding before a notary public or
another officer authorized to take that acknowledgment.
Va. Code § 21-5-3(e) (2015). 4

See W.

The plaintiffs contend that in

The 2015 version of the statute was passed in March 2015 and
was the version in effect in September 2015 when this case was
initiated in the state circuit court.
4

5

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utilizing these “chargebacks,” AT&T violated the WPCA by
assigning “[p]laintiffs’ employment wages and other employees’
wages despite not having valid wage assignments.”

Compl. ¶ 22.

Count Two alleges that AT&T violated § 21-5-4(b) of
the WPCA by failing to pay employees all of the wages that they
had earned within the time period mandated by the WPCA when they
left employment with AT&T.

See id. ¶¶ 24–30, 45–47.

The WPCA

requires that when an employee is discharged or quits or
resigns, the former employee must be paid “wages due for work
that the employee performed prior to the separation of
employment on or before the next regular payday on which the
wages would otherwise be due and payable.”

W. Va. Code § 21-5-

4(b) (2015) (emphasis added).
The plaintiffs also assert these allegations on behalf
of a putative class of other former AT&T employees.
39.

Id. ¶¶ 31–

Tim Bondurant and John Gasper were named in this lawsuit as

additional plaintiffs, but they voluntarily dismissed themselves
pursuant to their arbitration agreements.

B.

State Court Proceeding

After discovery, AT&T filed a motion for summary
judgment in state court in which it argued that Rotruck v.
Smith, No. 14-1284, 2016 WL 547190 (W. Va. Feb. 10, 2016)
6

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(memorandum decision), an unpublished memorandum opinion of the
Supreme Court of Appeals of West Virginia, was dispositive and
mandated the entry of summary judgment in favor of AT&T.
ECF No. 23–11, Ex. 11 (“Order”) at 3.

See

AT&T argued that, based

on Rotruck, an employer would only be subject to wage assignment
requirements under the WPCA when the employer is acting as a
creditor of the employee.

See id.

AT&T also contended that, as

a matter of law, the “chargebacks” do not constitute earned
wages and are therefore not subject to the requirements of the
WPCA.

See id. at 5.
In response, the plaintiffs argued that three prior

published cases of the Supreme Court of Appeals found that
employers who assign employee wages are subject to the WPCA
irrespective of a creditor relationship: Robertson v. Opequon
Motors, Inc., 519 S.E.2d 843 (W. Va. 1999) (per curiam); Jones
v. Tri-County Growers, Inc., 366 S.E.2d 726 (W. Va. 1988); and
Clendenin Lumber & Supply Co., Inc. v. Carpenter (“Clendenin”),
305 S.E.2d 332 (W. Va. 1983).

See id. at 3–4.

The plaintiffs

further asserted that commissions are included in the types of
wages covered by the WPCA.

See id. at 5.

The parties make the

same arguments now.
The state circuit court issued an order denying AT&T’s
motion for summary judgment on November 27, 2017.

7

Id. at 6.

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The court reasoned that this case was “no different from
Robertson . . . or from Jones” cited by the plaintiffs because
“an employee’s commissions were subsequently reduced due to
costs incurred by the employer for a particular sale” in those
cases.

Id. at 5.

The court found that Rotruck, upon which AT&T

relied, was inconsistent with the WPCA and with published
opinions of the Supreme Court of Appeals, and the court rejected
AT&T’s argument that the “chargebacks” did not constitute earned
wages as a matter of law.

Id. at 5-6.

The court also

determined that there is “a genuine issue of fact” as to whether
any “chargebacks” were in excess of the amounts advanced to the
plaintiffs.

Id. at 5.

Shortly thereafter, on December 22, 2107, AT&T filed a
motion to certify questions of law to the Supreme Court of
Appeals.

See ECF No. 28-9, Ex. I.

questions.

AT&T asked to certify two

First, whether “an employer is subject to the wage

assignment requirements of W. Va. Code § 21-5-3(e) only when the
employer is a creditor of its own employee” based on the
decision in Rotruck.

Id. at 2.

Second, whether W. Va. Code

§ 21-5-3(e) “applies to reductions from earned wages, and thus
requires [AT&T] to obtain a valid wage assignment to recoup
prior commission advances from future commission advances to
retail sales employees.”

Id.

The state circuit court denied

8

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the motion to certify these questions in a hearing on March 22,
2018.

See Pls.’ Reconsider Opp. at 9.
Separate from the motion to certify questions of law,

the plaintiffs moved for class certification in the state
circuit court on May 15, 2017.

See ECF No. 6 at 3.

During the

same hearing on certifying questions on March 22, 2018, the
state circuit court orally approved the class.

See id.

The

plaintiffs prepared a proposed order with the following class
definition:
All commissioned employees currently or formerly
employed by Defendant in West Virginia within five
years of the filing of this complaint through the
present who were subject to AT&T Mobility’s consumer
related sales compensation policy. The class excludes
any persons with an existing arbitration clause with
AT&T, as well as any persons who have released their
claims.
ECF No. 1 at 5.

AT&T did not respond to the proposed order and

the state circuit court did not enter the proposed order before
the case was removed.

See ECF No. 6 at 3; ECF No. 1-1 at 569-

74.

C.

Federal Court Proceeding

On April 23, 2018, AT&T removed the case by asserting
that this court has jurisdiction pursuant to the Class Action
Fairness Act of 2005 (“CAFA”), as set forth in 28 U.S.C.
§ 1332(d).

See ECF No. 1 at 1.

The plaintiffs filed a motion
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to remand based on untimely removal.

See ECF No. 5.

This court

denied the motion to remand on October 15, 2019, see ECF No. 52,
and continues to exercise diversity jurisdiction over the case.
While awaiting this court’s decision on the motion to
remand, on February 1, 2019, AT&T filed a motion to reconsider
the state court order that denied its state court motion for
summary judgment.

See ECF No. 23.

In the motion to reconsider,

AT&T argues that the state court’s order denying summary
judgment “comprises a clear error of law” and should be
reconsidered before this court.

See id. at 16.

The plaintiffs also filed a proposed order granting
plaintiffs’ motion for class certification on February 5, 2019.
See ECF No. 26.

As previously discussed, the plaintiffs filed

their motion for class certification in the state circuit court,
but they have not filed a motion for class certification in this
court.

The proposed order defines the same class as the

proposed order from the state circuit court.

See id. at 5.

AT&T only “[a]greed as to form” of the proposed order before
this court.

Id. at 6.

The parties then filed cross motions for summary
judgment on September 4, 2019.

The plaintiffs filed a motion

for partial summary judgment on Count One, for illegal
assignment of employment wages under the WPCA.
10

See ECF No. 42.

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AT&T filed a motion for summary judgment to dismiss the case in
full.

See ECF No. 43.

All three motions have been fully

briefed.

II.

A.

Motion to Reconsider

Legal Standard

AT&T filed its motion to reconsider pursuant to Rule
54(b) of the Federal Rules of Civil Procedure.

According to

Rule 54(b), an interlocutory order “that adjudicates fewer than
all the claims . . . may be revised at any time before the entry
of a judgment adjudicating all the claims.”
54(b).

Fed. R. Civ. P.

An order denying summary judgment is such an

interlocutory order.
(4th Cir. 2019).

Williams v. Strickland, 917 F.3d 763, 767

A district court retains the power to

reconsider and modify its interlocutory orders at any time prior
to final judgment when such is warranted.

Am. Canoe Ass'n v.

Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003); see
also Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S.
1, 12 (1983) (noting that “every order short of a final decree
is subject to reopening at the discretion of the district
judge”); Fayetteville Investors v. Commercial Builders, Inc.,
936 F.2d 1462, 1469 (4th Cir. 1991) (“An interlocutory order is
subject to reconsideration at any time prior to the entry of a

11

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final judgment.”).

However, where an order is entered by one

judge and then reviewed by another judge, the latter judge
should be hesitant to overrule the earlier determination.
Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017)
(affirming the district court’s denial of a motion to reconsider
the summary judgment award from a multidistrict litigation
court).
The Fourth Circuit has applied two analyses to
determine the applicable standard of a review for a motion to
reconsider: (1) comparison to the standards of Rule 59(e) and
60(b) of the Federal Rules of Civil Procedure for amending a
final judgment; and (2) comparison to the law-of-the-case
doctrine.

Under the first analysis, amending a judgment, or

reconsidering a judgment, is proper on three grounds: “(1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice.”
Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998); see, e.g., Norfolk S. Ry. Co. v. Nat'l Union Fire
Ins. of Pittsburgh, PA, 999 F. Supp. 2d 906, 919 (S.D.W. Va.
2014) (applying the these grounds to review a motion to
reconsider); In re C.R. Bard, Inc., 948 F. Supp. 2d 589, 649
(S.D.W. Va. 2013) (same).

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Under the second analysis, federal courts cabin
revision of interlocutory orders pursuant to Rule 54(b) by
treating such rulings as law of the case.
325.

Carlson, 856 F.3d at

The law-of-the-case doctrine provides that, in the

interest of finality, “when a court decides upon a rule of law,
that decision should continue to govern the same issues in
subsequent stages in the same case.”

United States v. Aramony,

166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 816 (1988)).

A court may

revise an interlocutory order under the law-of-the-case doctrine
by application of the following three circumstances: (1) “a
subsequent trial produc[ing] substantially different evidence”;
(2) a change in applicable law; or (3) clear error causing
“manifest injustice.”

Am. Canoe Ass'n, 326 F.3d at 515 (quoting

Sejman v. Warner–Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir.
1988)); see, e.g., U.S. Tobacco Coop. Inc. v. Big S. Wholesale
of Virginia, LLC, 899 F.3d 236, 257 (4th Cir. 2018) (applying
these circumstances to review a motion to reconsider); Hinkle v.
Matthews, 337 F. Supp. 3d 674, 677 (S.D.W. Va. 2018) (same).
The law-of-the-case doctrine “expresses the practice
of courts generally to refuse to reopen what has been decided,”
but it does not “limit [courts'] power.”
225 U.S. 436, 444 (1912).

Messenger v. Anderson,

“Law of the case . . . does not and

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cannot limit the power of a court to reconsider an earlier
ruling.

The ultimate responsibility of the federal courts, at

all levels, is to reach the correct judgment under law.”
Canoe Ass'n, 326 F.3d at 515.

Am.

This court does not restrict its

review to a blind adherence to the law of the case.
AT&T asserts that the state court denial of summary
judgment was a clear error of law, and that reconsideration is
warranted to correct this error and to prevent manifest
injustice.

See Def.’s Reconsider Mem. at 16–17.
The state court denial of summary judgment was an

interlocutory order.

When a case is removed to federal court,

the federal district court has the power to reconsider
interlocutory rulings of the state court from which the case was
removed.

Gen. Inv. Co. v. Lake Shore & M.S. Ry. Co., 260 U.S.

261, 267 (1922) (“Had the cause remained in the state court, the
power to reconsider would have been in that court, but when the
removal was made the power passed with the cause to the District
Court.”).

A federal statute provides that upon removal, “[a]ll

injunctions, orders, and other proceedings had in such action
prior to its removal shall remain in full force and effect until
dissolved or modified by the district court.”

14

28 U.S.C. § 1450.

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The court reconsiders the state court summary judgment
ruling, as requested by AT&T, in light of its substantial claim
of clear error and, if sustained, to prevent manifest injustice.

B.

Reconsideration

AT&T posits that the case, as to Count One, turns on a
singular issue: whether the wage assignment provision of the
WPCA, § 21-5-3(e), applies to the “chargebacks” that AT&T made
to the “unearned commission payments it advanced” to the
plaintiffs.

Def.’s Reconsider Mem. at 1, 7.

arguments in support of its position.

AT&T outlines two

First, that the state

circuit court, in denying summary judgment, erroneously
disregarded the most recent decision of the Supreme Court of
Appeals of West Virginia on the subject, Rotruck v. Smith.
id. at 10-12.

See

Second, that the state circuit court erroneously

disregarded applicable case law that the WPCA protects only
earned “wages,” and that it is undisputed that AT&T never
applied “chargebacks” to earned “wages.”

(1)

See id. at 12–16.

Creditor Status and the Application of Rotruck v.
Smith
AT&T argues that the state circuit court erroneously

disregarded the decision of the Supreme Court of Appeals of West
Virginia in Rotruck v. Smith when it denied summary judgment.

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The state circuit court found Rotruck to be inconsistent with
the WPCA and published opinions of the Supreme Court of Appeals.
See Order at 5.

AT&T asserts that the decision in Rotruck is

“dispositive of Plaintiffs’ claims and, upon reconsideration,
mandates the entry of summary judgment in [AT&T’s] favor.”
Def.’s Reconsider Mem. at 12.
The plaintiffs allege that AT&T’s “chargeback”
practice violates § 21-5-3(e) of the WPCA, which reads:
No assignment of or order for future wages shall be
valid for a period exceeding one year from the date of
the assignment or order. An assignment or order shall
be acknowledged by the party making the same before a
notary public or other officer authorized to take
acknowledgments, and any order or assignment shall
specify thereon the total amount due and collectible
by virtue of the same and three fourths of the
periodical earnings or wages of the assignor shall at
all times be exempt from such assignment or order and
no assignment or order shall be valid which does not
so state upon its face: Provided, That no such order
or assignment shall be valid unless the written
acceptance of the employer of the assignor to the
making thereof is endorsed thereon: Provided, however,
That nothing herein contained shall be construed as
affecting the right of employer and employees to agree
between themselves as to deductions to be made from
the payroll of employees.
W. Va. Code § 21-5-3(e) (2015) (emphasis omitted).
The WPCA does not define “assignment of . . . future
wages.”

Courts look to the West Virginia Consumer Credit and

Protection Act (“CCPA”), W. Va. Code § 46A–1–101 et seq., to
determine what constitutes an assignment of wages for purposes

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of WPCA requirements because both the CCPA and the WPCA “are to
be construed together” and “read in pari materia.”

Clendenin,

305 S.E.2d at 336 (citing Farley v. Zapata Coal Co., 281 S.E.2d
238, 243 (W. Va. 1981)).

The definition applied from the CCPA

is for an “assignment of earnings”:
“Assignment of earnings” includes all forms of
assignments, deductions, transfers, or sales of
earnings to another, either as payment or as security,
and whether stated to be revocable or nonrevocable,
and includes any deductions authorized under the
provisions of section three, article five, chapter
twenty-one of this code, except deductions for union
or club dues, pension plans, payroll savings plans,
charities, stock purchase plans and hospitalization
and medical insurance.
W. Va. Code § 46A-2-116 (2)(b) (2015).
In Clendenin, the appellee-employer, Clendenin Lumber
and Supply Co., maintained a policy of extending credit to
employees who desire to purchase goods from the employer store.
305 S.E.2d at 333.

The appellant-employee charged several items

to his account and entered into an agreement with the employer
to authorize the deduction of a set amount each month from the
employee’s payroll to pay off the outstanding credit balance.
Id. at 333-34.

The agreement was not signed by a representative

of the employer, nor was it notarized.

Id. at 334.

After the

employee left employment and the employer sought to collect the
outstanding balance, plus interest and costs, the employee filed

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suit alleging that the agreement was an unlawful assignment of
wages that violated W. Va. Code § 21-5-3.

See id.

The Supreme Court of Appeals concluded that the
agreement was an assignment of wages subject to the WPCA.
at 338.

Id.

The court held that the phrase “to another” in the CCPA

regarding an assignment of earnings “includes an employer when
that employer is also the creditor of the employee.”
338.

Id. at

The court based this on the idea that “it would be

inconsistent for this Court to exempt employers from the
provisions” of the WPCA when the employer assigns to itself
future wages of an employee in satisfaction of a debt to the
employer.

See id. at 337.

Holding otherwise would relieve the

employer of any responsibility under the WPCA and the CCPA with
respect to its employees.

See id.

The court therefore found it

“sound to conclude that employers are subject to” both the WPCA
and the CCPA.

Id.

Later, in Rotruck v. Smith, the Supreme Court of
Appeals again considered an alleged violation of the WPCA from a
former employee.

The petitioner-employee, Ms. Rotruck, worked

as a sales associate for an insurance company and was to be
compensated by commission only.

2016 WL 547190 at *1.

Ms.

Rotruck never obtained the necessary license to sell insurance,
so she could not lawfully earn a commission, but she was

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nonetheless paid some compensation for her services.

See id.

The employer also provided Ms. Rotruck with financial assistance
on occasion by paying for her car payments, gas, and some of her
medication, and by advancing her cash to cover emergencies.
id.

See

Ms. Rotruck was expected to reimburse these expenditures

from her future earnings, and the amounts advanced were deducted
from those earnings.

See id.

Ms. Rotruck was terminated

several months later, 5 and she filed suit alleging violations of
the WPCA.

See id. at *2.

The state trial court found that Ms.

Rotruck failed to state a claim and thus granted judgment
against her.

Id.

On appeal, the Supreme Court of Appeals found that the
advances made to Ms. Rotruck were not wage assignments but
rather were “more akin to salary advances graciously provided in
response to Ms. Rotruck's financial need.”

Id. at *5.

Relying

on the decision in Clendenin, the court reasoned that “there can
be an assignment to an employer only when the employer is a
creditor under the [CCPA],” and that “an employer is subject to

5

Ms. Rotruck was terminated for the following reasons: (1) not
obtaining licenses in a timely manner as agreed when she was
hired, (2) being unable to perform her job duties, including the
completion of her insurance exam as per the agreement when she
began her position, despite numerous attempts by the employer to
modify the requirement to accommodate Ms. Rotruck’s situation,
and (3) misleading the employer with regard to taking the
licensing examination. See Rotruck, 2016 WL 547190 at *2.
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the wage assignment requirements of W. Va. Code § 21–5–3(e) only
when the employer also is a creditor of its own employee.”

Id.

at *4.
Pursuant to the CCPA, a “consumer credit sale” is
defined, in relevant part, as “a sale of goods, services or an
interest in land in which . . . [c]redit is granted either by a
seller who regularly engages as a seller in credit transactions
of the same kind or pursuant to a seller credit card.”
Code § 46A–1–102(13)(a) (2015).

W. Va.

Based on this definition, the

court in Rotruck reasoned that the employer was not a creditor
of Ms. Rotruck because the advances did not qualify as “consumer
credit sales.”

Rotruck, 2016 WL 547190 at *5.

The court also

determined that the advances did not qualify as a “consumer
loan” because the employer was not “regularly engaged in the
business of making loans.”
102(15)).

Id. (citing W. Va. Code § 46A–1–

In contrast, the court noted that the employer in

Clendenin was a creditor because it engaged in the sale of
commercial products to its own employees in consumer credit
transactions.

See id.

AT&T asserts that Rotruck relies on Clendenin to
conclude that “an employer is subject to the wage assignment
requirements of [the WPCA] only when the employer is also a
creditor of its own employee.”

See Def.’s Reconsider Mem. at

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10–11 (quoting Rotruck, 2016 WL 547190 at *4).

AT&T contends

that Rotruck is dispositive in this case because AT&T did not
serve as a creditor to its employees with respect to the
commission advances.

However, AT&T’s reading of Clendenin is

far too restrictive.

Clendenin merely states that the wage

assignment requirements “include[] an employer when that
employer is also the creditor of the employee.”
305 S.E.2d at 338 (emphasis added).

See Clendenin,

Furthermore, Clendenin

unequivocally affirms that “it would be inconsistent” to exempt
employers from the requirements of the WPCA.

See id. at 337.

AT&T’s asserted narrow application of the WPCA also conflicts
with the analysis of the Supreme Court of Appeals that the WPCA
is “remedial legislation designed to protect working people” and
must be construed “liberally so as to furnish and accomplish all
the purposes intended.”

Meadows v. Wal-Mart Stores, Inc., 530

S.E.2d 676, 688 (W. Va. 1999) (citation omitted).
The holding from Rotruck, an unpublished opinion, that
an employer is only subject to the WPCA wage assignment
requirements when it acts as a creditor of its own employee,
conflicts with published opinions of the Supreme Court of
Appeals.

In Jones v. Tri-City Growers, Inc., the Supreme Court

of Appeals held that the WPCA wage assignment requirements
applied to an agricultural employer when the employer withheld

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wages of foreign workers in order to pay certain expenses. 6
S.E.2d at 728–31.

366

There was no discussion of a creditor

relationship between the employer and the workers, and the Court
cited its own published opinion in Clendenin to support the
holding.

See id. at 730–31.

The court in Robertson v. Opequon

Motors, Inc. also concluded that the WPCA wage assignment
requirements applied to an employer car dealership.
at 850.

519 S.E.2d

The court found that the commissioned car salespeople

“never executed valid wage assignments for [withholdings] as
required by the [WPCA].” 7
a creditor relationship.

Id.

Again, there was no discussion of

See id.

AT&T’s case is more like

Robertson than the single employee scenario in Rotruck because
the practices in Robertson and of AT&T both involve a policy
applied to multiple salespeople to deduct commissions.
Furthermore, to the extent that AT&T has paid an employee a

6

The withholdings were used to: (1) reimburse the employer for
any expenses incurred when a worker does not return to Jamaica
at the end of the contract; (2) secure expenses of repatriation,
including return transportation costs; (3) repay transportation
advances; (4) repay the Jamaican government for any sums
advanced to the workers; and (5) provide insurance. Jones, 366
S.E.2d at 728.
7

The withholdings included “any costs associated with a
customer's use of a credit card” in purchasing the vehicle, and
the costs for “repairs made to cars that the employees had sold”
after a customer had taken delivery of the vehicle. Robertson,
519 S.E.2d at 850. The employer passed the total amount of
these costs onto the salespeople in the form of the
withholdings. See id.
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commission for goods or services that have not vested, if the
goods or services are returned or terminated and the commission
is cancelled, AT&T can be regarded as a creditor of its employee
until it recoups the commission so paid.
In State v. McKinley, the Supreme Court of Appeals
adopted a three-tier system of precedent to clarify the weight
and authority of its opinions.
2014).

764 S.E.2d 303, 306 (W. Va.

The first and highest tier is published signed opinions

containing original syllabus points, which have “the highest
precedential value because the Court uses original syllabus
points to announce new points of law or to change established
patterns of practice by the Court.”

Id. at 313.

The second

tier is published signed opinions that do not contain original
syllabus points but “also carry significant, instructive,
precedential weight because such opinions apply settled
principles of law in different factual and procedural scenarios
than those addressed in original syllabus point cases.”

Id.

Both tiers “should be the primary sources relied upon in the
development of the common law.”

Id.

The third and lowest tier is memorandum decisions,
which are “decisions by the Court that are not signed, do not
contain a Syllabus by the Court, and are not published.”

Id.

Citation to a memorandum decision must clearly denote that a

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memorandum decision is being cited.
Va. R. App. P. 21(e)).

Id. at 311–12 (citing W.

Memorandum decisions “may be cited as

legal authority, and are legal precedent, [but] their value as
precedent is necessarily more limited; where a conflict exists
between a published opinion and a memorandum decision, the
published opinion controls.”

Id. at 313; see, e.g., State v.

Deel, 788 S.E.2d 741, 749 (W. Va. 2016) (applying McKinley to
overrule a previous memorandum decision “only insofar as that
decision directly conflicts with our established law”).
Federal courts exercising jurisdiction through
diversity of citizenship must apply state substantive law.

Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also
Stonehocker v. Gen. Motors Corp., 587 F.2d 151, 154 (4th Cir.
1978) (“[F]ederal courts are to apply the substantive law the
State in which they are sitting would apply if the case had
originated in a State court.”).

Removal in this case was based

on the diversity jurisdiction underlying CAFA.

This court must

therefore consider the relevant case law from the Supreme Court
of Appeals of West Virginia.

Based on the previous review of

the cases, the unpublished memorandum opinion in Rotruck, as the
state circuit court judge aptly observed, conflicts with
published opinions of the Supreme Court of Appeals in Robertson,
Jones, and even Clendenin.

The published opinions of the

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Supreme Court of Appeals are controlling and Rotruck, though it
reached an equitable result, does not bind this court.
Accordingly, as to Rotruck v. Smith, this court does not find a
change in applicable law or clear error by the state circuit
court in that respect that warrants reconsideration of the state
court denial of summary judgment.

(2)

“Earned” Wages under the WPCA

AT&T next argues that the state circuit court
disregarded applicable case law holding that the WPCA protects
only earned “wages,” and that it is undisputed that the
“chargeback” scheme never applied to earned “wages.”

According

to AT&T, this case depends on whether “chargebacks” constitute
wage assignments under the WPCA.

See ECF No. 29 (“Def.’s

Reconsider Reply”) at 11.
The state circuit court found that this case was no
different from Robertson, discussed supra, in which deductions
from sales commissions were found to be wage assignments, or
from Jones, also discussed supra, in which a wage assignment was
applied to advances of transportation costs for foreign workers.
See Order at 5.

In Robertson, Jones, and this case, the state

circuit court determined that the employees’ commissions (or
wages in Jones) were reduced due to costs incurred by the

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employer for a particular sale or labor.

See id.

Because the

“chargebacks” by AT&T only applied to commission advances and
because “commissions” are included among the types of wages
covered by the WPCA, the state circuit court concluded that
AT&T’s “chargeback” scheme was subject to WPCA requirements.
See id.
The WPCA defines “wages” as follows:
The term “wages” means compensation for labor or
services rendered by an employee, whether the amount
is determined on a time, task, piece, commission or
other basis of calculation.
W. Va. Code § 21-5-1(c) (2015).

The term “wages” is statutorily

defined to include “commissions.”

See id.

However, the WPCA

“does not establish how or when wages are earned.”

Gregory v.

Forest River, Inc., 369 Fed.Appx. 464, 469 (4th Cir. 2010).
The Supreme Court of Appeals of West Virginia has
adopted the following general rule about commissions:
As a general rule, a person employed on a commission
basis to solicit sales orders is entitled to his
commission when the order is accepted by his employer.
The entitlement to commissions is not affected by the
fact that payment for those orders may be delayed
until after they have been shipped. This general rule
may be altered by a written agreement by the parties
or by the conduct of the parties which clearly
demonstrates a different compensation scheme.

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Adkins v. Am. Mine Research, Inc., 765 S.E.2d 217, 220 (W. Va.
2014) (quoting Vector Eng'g and Mfg. Corp. v. Pequet, 431 N.E.2d
503, 505 (Ind. Ct. App. 1982)).
Based on this general rule, the Supreme Court of
Appeals has determined that “the terms of the employment
agreement will dictate when ‘wages’ are earned for purposes of
becoming payable pursuant to the WPCA.”

Id. at 221.

In Adkins,

the Supreme Court of Appeals further clarified that:
[T]he WPCA itself does not create a right to
compensation. Rather, it provides a statutory remedy
when the employer breaches a contractual obligation to
pay earned wages. The contract between the parties
governs in determining whether specific wages are
earned.
Id. at 220 (internal quotation marks omitted) (quoting Weldon v.
Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990)); see also Grim v.
E. Elec., LLC, 767 S.E.2d 267, 281 (W. Va. 2014) (“The amount of
wages payable to an employee pursuant to the provisions of the
WPCA is determined exclusively by the terms of the employment
agreement.”) (emphasis omitted); Mullins v. Venable, 297 S.E.2d
866, 869 (W. Va. 1982) (The [WPCA] is remedial legislation
designed to protect working people and assist them in the
collection of compensation wrongly withheld.”).

For example, in

Gregory v. Forest River, an employment agreement established
that commissions would be paid on sold vehicles once the
vehicles shipped rather than when the vehicles were invoiced.

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369 Fed.Appx. at 466.

The Fourth Circuit determined that this

employment agreement “d[id] not contravene any provision of the
WPCA.”

Id. at 469.
The employment agreement that dictates when wages are

earned for purposes of becoming payable pursuant to the WPCA may
be “written or in the form of a consistently applied unwritten
policy.”

Adkins, 765 S.E.2d at 220.

The applicable employment

agreement in this case is the AT&T Sales Compensation Plan.
Under the Plan, a “commission” is “a form of variable
compensation Sales Team Members are eligible to earn, which may
be subject to Chargebacks, Reconciliations and Manual
Adjustments.”

AT&T Plan at 4.

“Commissions are not earned for

qualifying sales activity until the completion of the Vesting
Period and verification of the sales activity by [AT&T].

Any

monetary payment made prior to verification by [AT&T] is an
Advance of the unearned Commission.”

Id. at 61; see also id. at

4 (“Commissions are considered Advanced pending the expiration
of the Vesting Period since they are subject to Chargebacks.”). 8
Advanced payments for commissions are “not actually earned until
expiration of the Vesting Period.”

8

Id. at 3; see also id. at 37

AT&T may also determine that a sales activity is “invalid,
fraudulent, or otherwise contrary to policy.” AT&T Plan at 6.
Commissions cannot be earned for these sales and any commissions
already paid thereon are subject to “chargebacks.” Id.
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(“Commissions are considered Advanced until the expiration of
the Vesting Period.”); id. at 8, 42 (defining the “Vesting
Period” as the number of days a sale must remain active for
commissions to be earned).
Pursuant to the AT&T Sales Compensation Plan, the
plaintiffs’ commissions from the sale of products and services
were not “earned” until the end of the 180-day Vesting Period.
The advance payments that the plaintiffs received were also not
“earned” until the end of the Vesting Period.

If the

“chargebacks” were only applied to commissions before they
completed the Vesting Period, they only applied to “unearned”
commissions, in which case the “chargebacks” would not
constitute an assignment of future wages under the WPCA.
Adkins, 765 S.E.2d at 220.

See

The state circuit court did not

consider the line of cases of Adkins, Grim, and Gregory that
determined when wages are payable pursuant to the WPCA.

The

failure to do so and to recognize the commission as unearned
until the Vesting Period has run constitutes clear error of law.
Reconsideration is warranted to prevent manifest injustice.

(3)

Additional Arguments for Reconsideration

AT&T cites two unpublished opinions of this court in
support of its motion to reconsider and its claim that it should

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prevail on summary judgment as a matter of law: Spano v. Metro.
Life Ins. Co., No. 2:09-CV-01243, 2011 WL 2180657 (S.D.W. Va.
June 2, 2011), and Baylor v. Gen. Anesthesia Servs., Inc., No.
2:04-CV-01265, 2006 WL 2290707 (S.D.W. Va. Aug. 8, 2006).
Reliance on these cases for the motion to reconsider is limited
because the standard for reviewing a motion to reconsider is
whether the court committed a clear error of law in its
decision.

Any error here would be in the law applicable to the

state circuit court.

Federal district court opinions

interpreting state law are not binding on state courts.

Cf.

Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J.,
concurring) (concluding that a state trial court is not bound by
lower federal courts’ interpretation of federal law).

The state

circuit court was not required to follow opinions of this court,
so the failure to follow Spano and Baylor cannot constitute a
clear error of law.

Nevertheless, this court finds these two

opinions to be persuasive in AT&T’s argument with respect to the
motions for summary judgment.
In its reply to the plaintiffs’ response, AT&T also
presents two additional arguments in support of reconsideration.
First, AT&T argues that the “chargeback” scheme is consistent
with the remedial purposes of the WPCA.
at 7–8.

Def.’s Reconsider Reply

The court does not comment further on this argument

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because the determination of “earned” wages is dispositive to
reconsider the state court denial of summary judgment.

Second,

AT&T argues that the plaintiffs’ allegation that AT&T applied
“chargebacks” in excess of the sale amounts is merely an attempt
by the plaintiffs to create a genuine issue of material fact
where none exists.

Id. at 9.

The court considers this argument

below in the review of the motions for summary judgment.

III. Motions for Summary Judgment

A.

Legal Standard

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those necessary to establish the elements of a party’s cause of
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing

the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.

31

Id.

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The plaintiffs move for partial summary judgment on
Count One only.

See ECF No. 42 at 1.

AT&T moves for summary

judgment on both Count One and Count Two to dismiss the case in
full with prejudice.

B.

See ECF No. 43 at 1.

Issue of Material Fact

Both parties assert, to varying degrees, that there
are no genuine issues of material fact.

AT&T has asserted

throughout the pleadings that material facts are not in dispute.
See Def.’s Reconsider Mem. at 1, 3; Def.’s Reconsider Reply at
9-11; ECF No. 44 (“Def.’s Summ. J. Mem.”) at 1; see also ECF No.
48 (“Def.’s Partial Summ. J. Opp.”) at 2 (“The parties agree
that the facts are not in dispute . . . .”).

AT&T also argues

that the entire case turns on a single question of law: “whether
‘Chargebacks’ constitute wage assignments under the WPCA.”

See

Def.’s Reconsider Mem. at 7; Def.’s Reconsider Reply at 11;
Def.’s Partial Summ. J. Opp. at 2.
AT&T enumerates eight specific facts that it alleges
are not in dispute in its memorandum that accompanies its
summary judgment motion:

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(1)

AT&T’s retail sales compensation plans determined
and described the manner in which the plaintiffs
earned commissions and in which AT&T calculated
and paid their commission advances.

(2)

The plaintiffs did not earn a commission on any
given sale at the time of the sale.

(3)

Each sale had to successfully complete a 180-day
Vesting Period for the plaintiffs to actually
earn a commission on that sale.

(4)

If a customer cancelled a service or returned a
product within the Vesting Period, the plaintiffs
did not earn a commission on that sale.

(5)

AT&T advanced commission payments to the
plaintiffs on a monthly basis, regardless of the
Vesting Period.

(6)

Each commission payment AT&T provided to the
plaintiffs was an advance for sales that had not
yet successfully completed the vesting period.

(7)

AT&T applied “chargebacks” only in calculating
the amount of advances it made to the plaintiffs
and never reduced the plaintiffs’ earned
commissions.

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(8)

AT&T never applied a “chargeback” to calculate
the plaintiffs’ commission advances that exceeded
the amount of the sale to which the “chargeback”
applied.

See Def.’s Summ. J. Mem. at 5.

The plaintiffs do not respond

specifically to this list.
The plaintiffs allege that “there are no material
disputes of fact regarding Defendant’s failure to comply with
the [WPCA].”

Pls.’ Partial Summ. J. Mem. at 5.

The plaintiffs

also assert that “there is no material dispute of fact that AT&T
regularly assigned the wages of Plaintiffs and its West Virginia
employees without first obtaining a valid wage assignment under
the WPCA,” ECF No. 50 at 1; ECF No. 47 at 4, and that “there are
no disputes of fact regarding whether Defendant met the
requirements of the WPCA in assigning those wages,” Pls.’
Partial Summ. J. Mem. at 13.
Upon review of the record, the court finds that at
least three genuine issues of material fact exist: (1) whether
AT&T ever applied “chargebacks” in excess of the commissions
advanced to the named plaintiffs; (2) whether AT&T ever applied
“chargebacks” to earned wages that were either vested
commissions or hourly wages; and (3) whether AT&T paid the named
plaintiffs, when they each left employment with AT&T, all of the

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wages that they earned within the time period mandated by the
WPCA.

The parties fail to provide any evidence for the court to

assess these issues.

(1)

“Chargebacks” in Excess of Commissions

The plaintiffs allege that AT&T often applied
“chargebacks” in excess of what was paid as commissions.

See

Pls.’ Reconsider Opp. at 7, 19; see also ECF No. 23-2, Ex. 2,
Tr. at 28:2-29:7 (“[Y]ou may be charged back at a higher rate
than you ever were compensated for that . . . sale.”); ECF No.
23-3, Ex. 3, Tr. at 34:3-35:20 (“[W]e were charged back more
than what we earned.”).

This occurred when an employee was paid

a certain amount of commission for selling a product and then
the product’s value went up in cost before the commission had
vested.

Pls.’ Reconsider Opp. at 7.

The plaintiffs also claim

that an employee would lose part of a commission if a customer
changed their mind about a product sold by the employee and
selected a different product but maintained the account with
AT&T.

Id.

The plaintiffs further allege that employees were

not told how much they would be charged back for any specific
item, nor were they told whether or how taxes and other
deductions from a commission would be reconciled with the
“chargebacks.”

Id. at 7–8.

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The state circuit court, in its order denying AT&T’s
motion for summary judgment, acknowledged that there was “a
genuine issue of fact as to whether, inter alia, sums were
deducted from commissions that exceeded the amounts advanced.”
See Order at 5 (emphasis omitted).
AT&T alleges that the plaintiffs failed to provide “a
single example of this alleged practice.”
Mem. at 7.

Def.’s Reconsider

AT&T further alleges that the plaintiffs “attempt to

create a genuine dispute of material fact where none exists”
based on “unsupported and conclusory deposition testimony.”
Def.’s Reconsider Reply at 9; see also Def.’s Summ. J. Mem. at 2
(calling the plaintiffs’ allegation a “manufactured factual
dispute”).

The plaintiffs maintain that “a material dispute of

fact remains with respect to Plaintiffs’ allegation that
Defendant illegally assessed chargebacks which exceeded the
initial commission amounts.”

See Pls.’ Reconsider Opp. at 6-7.

AT&T provides a declaration from Donna Norwood-Cooper,
a Sales Compensation Manager at AT&T, in which she states under
penalty of perjury that “[AT&T] never applied a ‘Chargeback’ in
an amount exceeding [the] amount of the sale to which the
‘Chargeback’ applied.”
added).

ECF No. 43-1, Ex. 1 ¶ 9 (emphasis

However, the plaintiffs’ allegation is that the

“chargebacks” often exceeded the amount of the commission

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advanced, not that “chargebacks” often exceeded the amount of
the sale on which the commission was based.

AT&T’s brief in

support of its motion for summary judgment exemplifies this
misunderstanding.

On one page of the brief, AT&T correctly

states the allegation as “Defendant illegally assessed
chargebacks which exceeded the initial commission amount,” but
then dismisses the allegation on the same page because “[t]he
evidence conclusively demonstrates that [AT&T] never applied a
‘Chargeback’ in excess of the amount of the sale to which the
‘Chargeback’ applied.”

See Def.’s Summ. J. Mem. at 2 (emphasis

added). 9
Neither party provides any evidence to support or
refute this allegation.

The declaration by Donna Norwood-

Cooper, as noted, fails to address it.

The court cannot

determine from the record whether AT&T ever applied
“chargebacks” that exceeded the amounts of the commissions
advanced to the named plaintiffs.

9

AT&T also asserts that plaintiff Atkins “does not claim that
[AT&T] ever applied ‘Chargebacks’ that exceeded the amount of
the sale [sic, commission on the sale],” and so AT&T argues that
it is “entitled to summary judgment against Atkins and any other
class member who was not subject to this alleged practice.” See
Def.’s Reconsider Reply at 9.
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(2)

“Chargebacks” to Earned or Unearned Wages

While the first issue of material fact concerns
whether “chargebacks” exceeded the amount of commissions, the
second issue concerns to what “chargebacks” applied — earned
wages or unearned (i.e., unvested) wages.

The basis of Count

One of the complaint is that AT&T “illegally deducted
chargebacks from Plaintiff[s’] employment wages . . . despite
the fact that Defendant had not obtained a valid wage assignment
from Plaintiffs.”

Compl. ¶ 42.

It is undisputed that AT&T did not have a notary
public, or other officer authorized to take acknowledgments,
present to witness the plaintiffs acknowledge the terms and
conditions of the sales compensation plans in order to receive
commission payments.

However, neither party presents any

evidence concerning to what monies the “chargebacks” were
actually applied for each named plaintiff during each pay
period.

An accounting of each applicable pay period for each

named plaintiff is necessary to determine the hourly earned
wages and vested commissions, “chargebacks” made against
unvested commissions, and the extent to which the “chargebacks”
reached earned wages if unvested commissions were insufficient
to absorb “chargebacks” in a given pay period.

Without a

complete accounting for each applicable pay period for each
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named plaintiff, the court cannot determine whether
“chargebacks” were ever applied to earned wages in or after
September 2010, or, instead, were applied only to unearned wages
of the named plaintiffs.

(3)

Timely Payment of Wages

Count Two alleges that AT&T failed to pay the
plaintiffs “in full after the cessation of their employment all
of the wages they had earned by the time periods mandated by the
WPCA.”

Compl. ¶ 46.

The plaintiffs allege that, upon their

separation, each “was not paid all his wages by the next regular
pay period and, in fact, still has not yet been paid all his
wages.”

See id. ¶¶ 25-30.
The WPCA requires that:
Whenever a person, firm or corporation discharges an
employee, or whenever an employee quits or resigns
from employment, the person, firm or corporation shall
pay the employee's wages due for work that the
employee performed prior to the separation of
employment on or before the next regular payday on
which the wages would otherwise be due and payable
. . . .

W. Va. Code § 21-5-4(b) (2015).
AT&T claims that it paid the named plaintiffs their
“final commission advances in accordance with its regular
commission cycle” after the plaintiffs left employment.

39

See

Case 2:18-cv-00599 Document 62 Filed 06/01/20 Page 40 of 43 PageID #: 2072

Def.’s Reconsider Mem. at 6.

AT&T further contends that it did

not apply “chargebacks” for any returns or cancellations that
occurred after the plaintiffs left.

See id.

However, the

plaintiffs allege that they were not paid all their wages by the
next regular pay period after they left employment. 10

ECF No.

23-8, Ex. 8 (plaintiffs’ supplemental responses to AT&T’s first
interrogatories).
Neither party addresses Count Two in their cross
motions for summary judgment.

As part of its motion to

reconsider, AT&T argues that Count Two is derivative of Count
One and thus can be decided based on the single question of law
of whether “chargebacks” constitute wage assignments under the
WPCA.

Def.’s Reconsider Mem. at 7.

This argument seems to be

based on the idea that Count Two is entirely dependent on
whether some wages remained unpaid to the plaintiffs because of
the “chargebacks.”

However, the named plaintiffs were paid both

hourly wages and commissions.

Def.’s Reconsider Mem. at 3-4.

Count Two is for the failure to pay “all of the wages [the
plaintiffs] had earned,” without distinction between hourly
wages and commissions.

Neither party addresses hourly wages

10

Plaintiff Roach says that he provided at least two weeks’
notice before quitting employment and that he was not paid his
wage on the date he quit. ECF No. 23-8, Ex. 8 at 3. The
parties do not address whether the date that plaintiff Roach
quit coincided with the next regular pay period.
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that may not have been timely paid in accordance with W. Va.
Code § 21-5-4(b) after the named plaintiffs left employment.
The parties have not demonstrated that there is no genuine issue
of material fact as to whether AT&T paid the plaintiffs all the
wages that they had earned — both hourly wages and commissions —
within the time period mandated by the WPCA.
Due to the genuine issues of material fact regarding
each of the three foregoing categories consisting of
“chargebacks” in excess of commission advances, whether
“chargebacks” were applied to earned or only to unearned wages,
and whether AT&T paid all wages earned by a retiring named
plaintiff pursuant to the WPCA deadline, the court cannot grant
summary judgment to either party.

However, the court does

conclude, on the primary issue of law in this case, that the
“chargebacks” made against unearned wages pursuant to the
agreed-upon commission compensation plan did not constitute an
assignment of wages governed by § 21-5-3(e) of the WPCA.

As

previously discussed, the WPCA wage assignment provision, W. Va.
Code § 21-5-3(e), protects “earned wages.”
S.E.2d at 220; Clendenin, 305 S.E.2d at 336.

See Adkins, 765
Commissions are a

type of “wage” that may be covered under the WPCA.
Code § 21-5-1(c) (2015).

See W. Va.

The terms of an employment agreement

dictate when “wages” are “earned” for purposes of becoming

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payable pursuant to the WPCA.

Adkins, 765 S.E.2d at 221; see

also Grim, 767 S.E.2d at 281; Syl. Pt. 5, Meadows, 530 S.E.2d at
679.

Under the AT&T Sales Compensation Plan, commissions were

not earned until the completion of the 180-day Vesting Period
and verification of the sale.

AT&T Plan at 61.

Any monetary

payment to an employee before the end of the Vesting Period was
an advance of unearned commissions.

Id. at 3, 4, 37, 61.

Any

“chargebacks” that applied to advanced commissions that had not
yet completed the Vesting Period were not an assignment of wages
and thus did not violate the wage assignment provision of the
WPCA.

IV.

Conclusion

AT&T satisfies the standard for granting a motion to
reconsider an interlocutory order because the state circuit
court failed to consider applicable case law regarding when
wages are “earned” pursuant to the WPCA.

Accordingly, it is

ORDERED that the defendant’s motion to reconsider be, and it
hereby is, GRANTED.
On separate review of the parties’ cross motions for
summary judgment, the court finds that neither party has
established that a genuine issue of material fact does not
exist.

It is therefore ORDERED that the plaintiffs’ motion for

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partial summary judgment be, and it hereby is, DENIED; and the
defendant’s motion for summary judgment be, and it hereby is,
DENIED.
The Clerk is directed to forward copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER: June 1, 2020

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