down only after the end of the year but three months later march of two thousand and ten the contract covered the bonus the period covered calendar year two thousand and nine it was paid out in march of two thousand and ten he was in fact employed in march of two thousand and ten the bonus was paid to other executives he was not paid the bonus and then he was terminated in april of two thousand and ten the trial court dismissed the case issue before you the interests of his work he needs to be working for the company he is making efforts and he is putting forth efforts which help the company to achieve its targets but the real key in this case is does the company meet the targets if the effectively yes because attendance that the contract doesn't set forth specifically something that he has to do in that sense it's an employment contract but he's working any if they fired him he would be working there he's got to show up for work he's got to be working and then presumably his work is adding to the company meeting the incentive bonuses otherwise the company wouldn't have offered him a bonus for doing that it doesn't have their two pieces the first piece of that is that if you look at the contract the contract passed inspection for the bonus and a section for the which is separate and the bonus is turned under any one sense if you take a look at the contract i don't know if you have it before you but there is a segment upon the page one to see anyone senate and this says how the bonus will be earned and no bonus will be paid if the results  twenty percent lower etc the quote portion that relates to the code of ethics is a different section entirely i concede that it is part of his obligations to maintain his employment but it is not something that goes to the in one sense of any more than something that goes to the salary he shows up for work he does his performance he's paid his salary he's paid his bonus if they wanted to fire him for having  don't concede that he has there's a lot of confusion on that i'd certainly like some discovery on that point but if they wanted to fire him for it they could have terminated his employment we may be looking at a different kind of case but that's not what they did they kept him employed through the end of the year they kept  march they kept in the florida until april now the second part of that is he certainly didn't file a the conduct he has given his affidavit that what he did was consistent with general accounting principles in addition you have the  i'd like to know how they came to that or if their opinion but brian burke called to see thing himself he has as much an expert as anybody else and he has stated that this was done entirely according to the practices moreover the letters provided by  it's something that there's certainly a dispute and he gave his affidavit that says that he has been filing anything and i have to concede that without having done the discovery and understanding the specifics that keep him just going for mr madison who said that there's no intent he said in his letter that there is  no violation i don't understand well that's coming from and i would need the discovery on that point but even so the the contract itself you're right it conflicts says you pay a salary in benefits for working you pay incentives here are the conditions we need to target next page we're going to tell you creation plan next it's paid for certain areas then you have an information confidentiality agreement you agree to do this you can be terminated that's the terminations section and then it goes into his terminations for cost  coffin is doing the analysis under section b of the regulation i think it's three hundred five hundred b because it hasn't been earned now we come to that question and you're right and it's discretionary if it's pacifically liste obituary for example where they say this is a discretionary bonus this is a bonus that you will and they've made a promise and the key to this is that when you look at the contract i know that the defendant would like to say it can never be earned bonus because in the contract exceeded their of calls the first couple times and then doubled his bonus or gave more and here there is no question i don't believe factually that the company achieved what they wanted to achieve me over eighty percent however that is not directly related to your client's participation is a yes it is because it is the company the company is a group of people who do their car whenever we get together as a team i do this in my law firm when the interested together and we we work on a case and we work as a team and everybody i think we get our goals and we do what we do as a team if the employees just i'm not going to perform then the company isn't going to hit its goals the reason that this is an incentive bonus they called in a sense it is that they want the company to schools they want the people to get up and do their jobs it minutely it doesn't go forward and state in specific pieces straight to the contract every little thing that happens every day of the week but any time that the company is going to be achieving goals it's achieving goals because its employees are doing work anybody who's getting an incentive bonus the whole point of an incentive bonus is to incentivize somebody to do the work so he is contributing presumably to the company achieving those goals the regulation puts it in terms of the employee  right the first thing is that there is what you've identified is sort of an anomaly in the way the the regulation is written the regulation says that the employee earns a bonus by performing his responsibilities and in fact if i can just have a moment i will lay my fingers exactly on the regulation it remains a question for an end bonus arises when an employee performs the requirements for a bonus set forth in the contract when agreement between the parties in this case the only thing that is directly required of him is to be employed i can see that but also there is the fact that the company has to meet the targets we're talking about here in section eight is that in a clean front end bonus rises when the conditions for that bonus are met you can't read it any other way it would make no sense so that's what we've got here in the conditions are met now the question is does meeting those conditions include some sort of ethical conduct and i've already gone forward that that's met and that maybe we need to discover and of putting that aside no test not be ethical conduct is something that is he's required to do as an employee and if they want to terminate him for it they can do it if they think that he's doing something wrong and if they had terminated him we would be looking at mclaughlin we would be looking at administrative regulations it's all talking about me as a former employee that's where the unequivocal language comes from where it's run by length of service and that's where we go off on this read for it's not reaching for a unequivocal is how we now analyze a bonus if the employee is seeking a program to share because it's a link to service bonus if the length of service going to like a vacation right so if i say you're going to earn your vacation for the length of time here that's an equivocal know what the targets would have been met then it's a question of now is it a link to service bonus that's what they're doing here we're not looking for a link the service bonus this is an earned a bonus because the were men so if you try to apply in the go off into this case which you now say is well right we're going to give you a bonus you can earn the bonus buy you get bonus if you're here and if we meet these targets work hard help us meet those targets thank you for helping us to meet those targets you've worked or by the way since it was not guaranteed since it was condition of making targets it's not an earned bonus under the i w pca and therefore we don't have to pay and that's my my second gr act which in fact was done in this case could we have filed a breach of contract claim as well certainly there's always cases where you can have more than one law that applies but clearly the idea of the p c a applies in this context come morning may it please the court i'm suzanne court to have as i said i represent the defendant of halley's court tax i'll see an alum information services on madison and dave check this case is about whether the agreement between the parties creates an unequivocal it's conditioned on on several things it's conditioned on the company meeting the adjusted to be the targets it's conditioned on the plane to still being employed and it's also conditioned on the other the other requirements in the offer was the anyone sentence was not it was not an unequivocal promise and therefore it could not be an earned bonus because it was conditional at the at the time that it was offered and it was not an earned bonus but they're not cases that address other other requirements within the offer letter but the but the statute is clear that the that the only bonus that can be that is at issue is our excuse me the regulation is clear is that the that the only bonus that can be an urn bonus is the bonus set forth in a contract or an agreement between the parties the agreement between the parties which actually is not a cause it's not an employment contract it was agreement though and is an agreement for purposes of the wage act i fear that agreement includes includes the requirement that the plaintiffs abide by the professional ethical per the situation was pro rata in the graph one case actually planned plaintiff's counsel is mistaken it and saying that it relied on section b a the regulation illinois administrative code section three hundred point five hundred  employee does not have a right to it until she he or she has performed the requirements set forth in the contract so the unequivocal promise has to language comes from it is interpreted to come from section a which is what we're looking at and changed so and he was given a different title and different responsibilities in two thousand and nine which would arguably invalidate the offer letter as applying but because but because we're only at the motion to didn't touch the contract even under a two even under two six one five it wasn't a contract it was an agreement even under two six one five the court is entitle to look at the agreement at issue and the court is entitled to rely on the agreement over the language of the agreement itself over whatever allegations that the plaintiff has made in their complaint about what the agreement says so the agreement at issue includes the requirement that  plaintiffs abide by professional and ethical standards will be affirmative matters that we introduced in the motion to dismiss included the evidence of  court's ruling and when else we base amount you can base it on that the fact that under this contract there were other requirements and and we have provided evidence that those requirements were not met i recognize that your honor has said that that's not just one other point getting back to the distinction between the section between the regulations section three hundred point five hundred and section three hundred point five hundred b well the court decided mcglothlin based on or in mclachlan there is a provision in the contract or agreement conditionally payment on employment on a certain date which it's not clear if that was the case in macof one and the employment relationship was terminated by mutual consent or through no fault of the employee went out section three hundred five hundred eight indicates that the right to a bonus must be unequivocal as the employee does not have a right to it until he or she has performed which means that once he or she has performed work comes at the same point is the conditions are met he does have a right to it and that's why when we look at the contract we see a bonus not a it says a discretionary bonus but what it is is it's a bonus that can be armed in the contract it hasn't been earned it's just written in the contract it's the promise now i do take issue with the when i consider honestly hairsplitting between an agreement and a contract there was an offer there was acceptance it was consideration if we wanted something attached or can certainly turn to say please attach the agreement we have no issue with that but if you look at the contract it says you words i'll drop part way down you will earn five percent of your bonus so that one hundred percent of the financial taken you will receive one hundred percent of the bonus for every additional one percent a financial target over one hundred percent the company gets you will turn two percent that's how you earn the bonus it's not a question of unequivocal in the contract it's the is unequivocal the contract in that you will get it if we hit the targets you will earn it but obviously we