ThrowAway7548
Member
Location - Nevada, USA
Apologies for the long post. Want to make sure I include all of what I believe is relevant information.
My other half asked that I write and post this for her.
Company Background
This company is based in Texas, but she is technically employed and paid through the branch in Nevada. They have their own Call Center dedicated to taking hotel reservations for their various properties. The total company size is more than 30,000 employees across all areas, just under 500 at this particular Nevada location, and approximately 10 employees at each Call Center location (Nevada & Texas). The job positions for both Call Centers are identical in every aspect except for the location. All Call Center Agents are paid the exact same starting hourly rate plus monthly incentives based on defined criteria. All Call Center Agent positions begin in person and transition to remote from home after sufficient observation.
Situation Background
She has been employed with this Company for 18 months now. She was among the first group of agents hired when the Nevada Call Center opened, 5 people counting her. During the training process, all employees in that first group were given a printout of the Incentive Plan.
This printout broke down, with defined dollar amounts and criteria, exactly how to earn and what you could expect for a monthly incentive. It also began with the statement "This is a discretionary incentive, management reserves the right to make changes or cancel at their discretion." There is also the statement "...any OT pay will still be based off your base pay rate and will not include any bonuses."
The version that was distributed to the first group is dated, with the month and year, as being last updated 3 months before the Nevada location opened. (I'm assuming here that because both locations are identical jobs they are also using the same Incentive Plans) She has since spoken with other agents outside of work that were hired on various later dates and they confirmed that the version they have is the same one she has. At no point since being hired was she or any other employee that she has talked to ever told in any form of communication that the Incentive Plan was being changed or had already been changed.
I won't lay out the whole plan here, but these are the categories that an incentive could be earned in: Quality (did the randomly reviewed calls check all of the required boxes), Number of properties handled (based on the number of properties an agent is trained/taking calls for), Upsells (percentage commission based on total upgrades sold).
These are not directly part of the Incentive Plan, but they are included on the same printout: Premium Shifts (additional $/hr pay based on working certain days and/or hours in a day), Tenure (additional $/hr pay after certain milestones, beginning with 1 year). The Tenure increase is also supposed to be a change to base pay and should be accompanied by the necessary payroll form showing the change.
Summary of Events
A few months ago I took a closer look at her pay and calculate her base hourly pay, overtime, and monthly incentives myself. (based on the printout she was given at hire)
I had her request the following records related to her pay: the start and end time of every shift worked, a breakdown of every monthly incentive paid, and the most recent version of the Incentive Plan with a history of any changes made. The version provided in this request still matched the original one she received when she started. (She even asked for confirmation and was told that "yes it was the most current version")
I came to the conclusion that what they had paid here was incorrect, by about $5,000.
I began doing research into laws/regulations that would apply to this and I zeroed in on about 10 different regulations in the FLSA. I put all of my calculations and supporting reasoning/evidence together into a presentable PDF and she went through the proper process with HR to file a pay discrepancy complaint.
After sending the official complaint to HR, a newer version of the Incentive Plan was provided, with a date 1 month after the Nevada Call Center opened. This was accompanied by a response from HR with the amount that they determined was correct, less than $300. She had to ask for their reasoning behind the amount and their response was basically, "The old version of the Incentive Plan was wrong so you can't use that one." They also provided the calculations they used to reach their amount and they only made corrections to her overtime.
She has not accepted the amount they offered and has asked them to provide proof that the version they are claiming is correct was ever distributed to all Agents. It has been 1 week since that last communication.
Conclusion (My Actual Question)
As far as I understand what I've read of the FLSA. "29 CFR 778.211" sets how to define a bonus as discretionary or non-discretionary. Even though the Incentive Plan is not a signed contract or agreement it falls under the non-discretionary category because of the fact that the same document is given to all employees and clearly communicates the criteria for achieving a specific bonus. Section (d) of that same regulation also states that labels are not determinative and that just because an employer calls a bonus one thing doesn't automatically make it that. The fact that they communicate how to obtain the bonus and how much can be expected negates them calling it discretionary and it instead needs to follow the rules of a non-discretionary bonus.
My entire reasoning centers on the fact that because they never communicated that the Incentive Plan was changed to their correct version it is not a valid revision and all incentives should have been calculated on the criteria in the original version. This causes a domino effect as to how much she should've been paid in regard to her base pay and overtime.
All communication has been between her and HR, through email. We have multiple copies of everything saved. I believe every Call Center Agent has some form of this same discrepancy, but I'm not certain. From what she has been told by other agents though, they are all very much afraid of any repercussions that might happen from trying to get this corrected. She was content doing nothing until I showed her the number that I figured out.
I understand that they are allowed to make whatever changes they want to the program, but are they not required to communicate that there are changes being made first? Is there something that I'm just not understanding? Especially the fact that these employees are working with the expectation that they will be earning an incentive much higher than what is being deemed as "correct".
Thanks in advance for any responses. I'll try and provide any additional info that's asked.
Apologies for the long post. Want to make sure I include all of what I believe is relevant information.
My other half asked that I write and post this for her.
Company Background
This company is based in Texas, but she is technically employed and paid through the branch in Nevada. They have their own Call Center dedicated to taking hotel reservations for their various properties. The total company size is more than 30,000 employees across all areas, just under 500 at this particular Nevada location, and approximately 10 employees at each Call Center location (Nevada & Texas). The job positions for both Call Centers are identical in every aspect except for the location. All Call Center Agents are paid the exact same starting hourly rate plus monthly incentives based on defined criteria. All Call Center Agent positions begin in person and transition to remote from home after sufficient observation.
Situation Background
She has been employed with this Company for 18 months now. She was among the first group of agents hired when the Nevada Call Center opened, 5 people counting her. During the training process, all employees in that first group were given a printout of the Incentive Plan.
This printout broke down, with defined dollar amounts and criteria, exactly how to earn and what you could expect for a monthly incentive. It also began with the statement "This is a discretionary incentive, management reserves the right to make changes or cancel at their discretion." There is also the statement "...any OT pay will still be based off your base pay rate and will not include any bonuses."
The version that was distributed to the first group is dated, with the month and year, as being last updated 3 months before the Nevada location opened. (I'm assuming here that because both locations are identical jobs they are also using the same Incentive Plans) She has since spoken with other agents outside of work that were hired on various later dates and they confirmed that the version they have is the same one she has. At no point since being hired was she or any other employee that she has talked to ever told in any form of communication that the Incentive Plan was being changed or had already been changed.
I won't lay out the whole plan here, but these are the categories that an incentive could be earned in: Quality (did the randomly reviewed calls check all of the required boxes), Number of properties handled (based on the number of properties an agent is trained/taking calls for), Upsells (percentage commission based on total upgrades sold).
These are not directly part of the Incentive Plan, but they are included on the same printout: Premium Shifts (additional $/hr pay based on working certain days and/or hours in a day), Tenure (additional $/hr pay after certain milestones, beginning with 1 year). The Tenure increase is also supposed to be a change to base pay and should be accompanied by the necessary payroll form showing the change.
Summary of Events
A few months ago I took a closer look at her pay and calculate her base hourly pay, overtime, and monthly incentives myself. (based on the printout she was given at hire)
I had her request the following records related to her pay: the start and end time of every shift worked, a breakdown of every monthly incentive paid, and the most recent version of the Incentive Plan with a history of any changes made. The version provided in this request still matched the original one she received when she started. (She even asked for confirmation and was told that "yes it was the most current version")
I came to the conclusion that what they had paid here was incorrect, by about $5,000.
I began doing research into laws/regulations that would apply to this and I zeroed in on about 10 different regulations in the FLSA. I put all of my calculations and supporting reasoning/evidence together into a presentable PDF and she went through the proper process with HR to file a pay discrepancy complaint.
After sending the official complaint to HR, a newer version of the Incentive Plan was provided, with a date 1 month after the Nevada Call Center opened. This was accompanied by a response from HR with the amount that they determined was correct, less than $300. She had to ask for their reasoning behind the amount and their response was basically, "The old version of the Incentive Plan was wrong so you can't use that one." They also provided the calculations they used to reach their amount and they only made corrections to her overtime.
She has not accepted the amount they offered and has asked them to provide proof that the version they are claiming is correct was ever distributed to all Agents. It has been 1 week since that last communication.
Conclusion (My Actual Question)
As far as I understand what I've read of the FLSA. "29 CFR 778.211" sets how to define a bonus as discretionary or non-discretionary. Even though the Incentive Plan is not a signed contract or agreement it falls under the non-discretionary category because of the fact that the same document is given to all employees and clearly communicates the criteria for achieving a specific bonus. Section (d) of that same regulation also states that labels are not determinative and that just because an employer calls a bonus one thing doesn't automatically make it that. The fact that they communicate how to obtain the bonus and how much can be expected negates them calling it discretionary and it instead needs to follow the rules of a non-discretionary bonus.
My entire reasoning centers on the fact that because they never communicated that the Incentive Plan was changed to their correct version it is not a valid revision and all incentives should have been calculated on the criteria in the original version. This causes a domino effect as to how much she should've been paid in regard to her base pay and overtime.
All communication has been between her and HR, through email. We have multiple copies of everything saved. I believe every Call Center Agent has some form of this same discrepancy, but I'm not certain. From what she has been told by other agents though, they are all very much afraid of any repercussions that might happen from trying to get this corrected. She was content doing nothing until I showed her the number that I figured out.
I understand that they are allowed to make whatever changes they want to the program, but are they not required to communicate that there are changes being made first? Is there something that I'm just not understanding? Especially the fact that these employees are working with the expectation that they will be earning an incentive much higher than what is being deemed as "correct".
Thanks in advance for any responses. I'll try and provide any additional info that's asked.
