Atkins v. AT&T Mobility Services, LLC

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. Background

A. 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.

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 ECF No. 45 (“Pls.’ Partial

Summ. J. Mem.”) at 5. The plaintiffs were compensated by hourly

wages regardless of sales activity and by commissions for

selling products and services. ECF No. 24 (“Def.’s Reconsider

Mem.”) at 3–4. The focus of the motions is on the sales

commissions. 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. Def.’s

Reconsider Mem. at 4. 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.

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.

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 Id. at

4. 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 33:3-

12 (deposition of Donna Norwood-Cooper).

compensation plan and submitted an acknowledgment, which

authorized AT&T to deduct “chargebacks” from the employee’s

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

Opp.”) at 7. 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. See W.

Va. Code § 21-5-3(e) (2015).4 The plaintiffs contend that in

4 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.

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. Id. ¶¶ 31–

39. 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)

(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. See

ECF No. 23–11, Ex. 11 (“Order”) at 3. 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. Id. at 6.

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. AT&T asked to certify two

questions. 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

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

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. See ECF No. 42.

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. Motion to Reconsider

A. 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.” Fed. R. Civ. P.

54(b). An order denying summary judgment is such an

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

(4th Cir. 2019). 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

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).

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. Carlson, 856 F.3d at

325. 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.” Messenger v. Anderson,

225 U.S. 436, 444 (1912). “Law of the case . . . does not and

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.” Am.

Canoe Ass'n, 326 F.3d at 515. 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.” 28 U.S.C. § 1450.

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. AT&T outlines two

arguments in support of its position. 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. See

id. at 10-12. 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.” See id. at 12–16.

(1) 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.

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

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

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. Id.

at 338. 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.” Id. at

338. 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

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. See

id. 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.

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.” W. Va.

Code § 46A–1–102(13)(a) (2015). 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.” Id. (citing W. Va. Code § 46A–1–

102(15)). 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

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.” See Clendenin,

305 S.E.2d at 338 (emphasis added). 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

wages of foreign workers in order to pay certain expenses.6 366

S.E.2d at 728–31. 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. 519 S.E.2d

at 850. The court found that the commissioned car salespeople

“never executed valid wage assignments for [withholdings] as

required by the [WPCA].”7 Id. Again, there was no discussion of

a creditor relationship. 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.

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

2014). 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

memorandum decision is being cited. Id. at 311–12 (citing W.

Va. R. App. P. 21(e)). 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

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

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.

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.

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.” Id. at 3; see also id. at 37

8 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.

(“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. See

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

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. Def.’s Reconsider Reply

at 7–8. The court does not comment further on this argument

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 fact-

finder could return a verdict for the non-movant. Id.

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. See ECF No. 43 at 1.

B. 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:

(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.

(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

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.

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.” Def.’s Reconsider

Mem. at 7. 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.” ECF No. 43-1, Ex. 1 ¶ 9 (emphasis

added). However, the plaintiffs’ allegation is that the

“chargebacks” often exceeded the amount of the commission

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.

(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

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. See

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.

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.” See Adkins, 765

S.E.2d at 220; Clendenin, 305 S.E.2d at 336. Commissions are a

type of “wage” that may be covered under the WPCA. See W. Va.

Code § 21-5-1(c) (2015). The terms of an employment agreement

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

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

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

Bir SL <>< a

Jo . Copenhaver, Jr.

Senior United States District Judge

43