for the order was submitted to the customer and at that point regardless of whether the customer had paid for the for the bill or not the sales person ms johnson was entitled to her commission subsequently there was a merger between office max and office depot and everything remained the same for about a year after the merger and well about half a year i guess when office depot announced it was going to change its commission structure and in essence it was going to pay its people paid on commission half of what they were dead been paid before and they said later in september they there was a plan available and ms johnson looked at it and said well that doesn't apply to my sales because this plan only applies to new sales to new customers none of my sales that i am being paid for were that these are all old continuing customers all the same stuff they don't have before they're just renewables so i'm not going to agree to compensation you are either accept the new compensation or you go to work for somebody else you can't say i'm continuing to work for you but my own compensation continues that's about the want to exclude outcome well your honor with all due respect that's not what this court has said this court has said you cannot unilaterally change an agreement and an employment agreement even if but then how do you factor i'm sorry writing i don't understand you and if there was a a plan of payments i don't know that there was any e mail by anybody that intended or they were ordered e mail exchange in september of twenty fourteen between this johnson and you know that vice president of employment law her name was kristen sampo and it set forth in writing that the policy apply to all commissions not merely new one but that's not what the policy sent if you read the policy it says it only applies to new orders so is it i don't see how somebody writing a memoir couldn't shake i'm sorry i'm sorry it was explained or only to her in july read the policy itself which is what they said this is our policy we want you to sign it the policy sent as it only applies to these new things so you can't just change the policy by saying no no no i disagree with what it says lets is one of sense with the exact language new business new business from new customers from new construction right and more importantly in march of two thousand and fifteen now they come up with a whole new plan which does cover all of the sales made by ms johnson but to go back to the judge used a bridge question this court is held in robinson versus eight i'm a killie community services that acceptance and consideration cannot be inferred from her kid to new willing to work because you can't unilaterally make a change without something else being given and given the fact that their own policy said it didn't apply her continuing to work does not accept something new that doesn't exist now can we talk about you know the difference here between commissions and commission is payment based on a percentage of the sales of that you have made that's a term of art in the law and it's set forth in a plethora of cases of which were cited in there were where is it set forth in illinois as a matter of illinois and while there are a couple of regulations one defines a commission as compensation for services performed person to an employment contract but that oddly treats regular wages as a commission so it's hard to understand how one could take that seriously is the rule of illinois blog defines commission the way you would like to define it as payment based on a percentage value commission or commission is the compensation paid to an employee when it is calculated as a percentage in the on the amount of the transaction it is that term used to define illinois cases have said commissions are included within incentives and the calculation of these payments never changed one iota it was always the same  bill was sent to the customer the percentage amount that was due to the employee was set and that was you know that that's been the case from the plant from the very beginning of this situation all the way up t is something that's well known and you know it's it's used to to even out payments to employees so that if their sales are uneven they get to they get paid something so they can eat and pay their bills in the meantime all of these banks have all of the earmarks of what the illinois courts have held our commissions that the wage payment and collection act and the regulations under the wage payment and collect well that the statute says it depends on the agreement between the pardons and here i don't see that there's anything in the policies of the defendant that says they're discretionary i commissions or the payments make up a substantial fraction of the employees compensation i don't think that necessarily follow through on it because there are so many different kinds of programs we want to i mean maybe the do you want to say it's irrelevant that your client got more than two thirds of her compensation in the form of commissions so i don't say it's irrelevant couldn't it's one of the considerations right previously that's one of the considerations i mean as is my colleague's questions indicated we're looking for guidance here from illinois law to try to distinguish between commissions and bonuses because it's important under the wage act and i'm trying to figure out what's important about that is is it relevant also that the the payments to your client to the plaintiff in this case were formed based on her individual performance as opposed to team or company wide performance certainly one of the defendant is arguing that the change in language from commissions to incentive payments ought to have been a signal to your client that these are no longer commissions could you address that question given the fact that they're determined the same way and figured the same way and and the payments are made based upon the same basis as before i don't see how it changing the label that you would teche to it to what term like incentive means one thing i mean maybe it's a way for the company to try and evade the requirements of the of the statute and other state statutes in which they do business but if they really meant to change it to something else they should have and could have changed that to a term that has some meaning in the law rather than one that has no money and as i've indicated the only other courts have said in this court has said incentive doesn't really have any meaning in itself it's just another term and it's included within commission compensation package was be in and have meant in other words compared compared to the base salary i'm sorry ron i didn't understand the question oh dear i'm wondering what percentage of the overall compensation package was the incentive and i know your honor i don't have that yes certainly not at the beginning up until march of two thousand and fifteen there was no such payments made to the plaintiff and that part of her claim certainly is not controlled right ordinarily the rule is the employer changes the rules of compensation you keep working you're bound by that it's employment at will you can walk away if you're unhappy but when what is the evidence tell us about when the employer actually settled up with your client for that time period there was no settling up with my client they just kept paying their commissions as time went on they didn't do anything two to quote look they just said as it was actually in july we're now paying you would have different rates well ok yeah and in fact if i may some of those commissions as of that date that they reduced the payments had already been earned under the prior process of the prior agreement they can't reduce retroactively which is already  are there any hurt and if so were there were there any were there any commissions he did on new rates for customers who had been invoiced before july fourteenth yes that's what i'm saying is that in your summary judgment papers oh absolutely mourning your honour's may please the court at the outset i'd like to step back for a moment to talk about the fundamental principle that the illinois wage payment collection act does not provide a substantive right to compensation to employees the purpose of the act is to insure and seven circuit is widely recognized as to ensure that employers honor their compensation agreements with employees in this case i submit that the undisputed facts are that in ms johnson admit it that office depot compensated or pursuant to the terms of those agreements and her request that she be paid other compensation outside of the terms of those agreements is asking this court to substantively provide for compensation that's not provided for under the terms of the agreement sorry under the prior playing the employees clearly receive commission came given the ambiguity in the term judge in context just by way of background in one of the court recognizes this but this was a merger between two companies of office max and office depot when office depot decided to basically meant put everyone on the same compensation plans as it transitioned both companies to merge them together there was a decision in there was a sea change in the way the sales reps were compensated under the office master plan which at the records replete with the fact that it had disclaimers people  employed it well there was no guarantee of compensation and it could be amended or terminated at any point but at that point office depot change the compensation system to a salary plus a variable variable incentive compensation r this doesn't really answer joe drove this question why should we hold the ambiguity against you or your client i don't believe judge there is an ambiguity if you look at the conflict if you look at the illinois way whether this is an ins a bonus or a commission judge if you look i believe the illinois supreme court would look to for guidance to the illinois wage payment collection act reggie regulations that were probably gated by the department of labor if you look at the illinois administrative code section three hundred point five was it that she would receive a salary of thirty four hundred dollars every two weeks and this was a new what was not what was under the straight commission plan thirty four hundred dollars every two weeks which is ninety four thousand i believe annually she was eligible for variable compensation for this incentive comp maybe it's half a million the year before correct this was a change she had a stand alone agreement unlike anyone else had i think the records clear on that too but she was on the same plan as everyone else now and this plan because she was entitled to a variable or incentive and that was driven by various targets quarterly but it was calculated on an annual basis so she was intitled and she was eligible to these payments so bonuses this is compensation in addition to the salary that she was paid for all hours worked under this is which thing that defines wellness excuse me you said it was the only one particular thing yeah i'm sorry it's the illinois administrative code title fifty six section three hundred point five hundred earned bonuses how does if i look at only that phrase in isolation compensation given in addition to the required compensation for services perform you've got a larger right but those who also have to distinguish between bonuses and commissions i believe does a far and as compensation for services performed pursuant to an employment contract or agreement between as someone who does well in you but if you were in state court who might ask the state court to throw them out which are not in state court and you can't take a favorable reading of the definition of bonus and altogether ignore the i go back to not only the administrative code but there are also illinois court decisions that talk about incentive compensation and they treat them as bonuses and i believe one of those decisions is surely governments i believe it's t loughlin case that we cited in our brief where it talks about or the re coast cases well where they talk about the incentive programs being more akin to a bonus then then they would be a of the your mercs of a bonus versus a commission judge first of all this these quarterly incentives were calculated on an annual basis of the if there was a sliding scale depending on your performance through the year and you had to if you were at least one hundred twenty five percent over your target sales margin then you received a kicker on what incentives you might receive if you were below that and that was just sent an annual basis so early on in the year unless you were blowing out and that's where it's variable depending upon what your performances you may get zero if you have no sales margin in a quarter you're still going to receive your base pay so therefore i believe this is more like a bonus because you're always going to get you're going to know when you're there you know there are plenty of companies that pay salespeople with a base plus commissions and referring to the fact that there's a modest base salary here compared at least to this sales persons performance doesn't really answer the question let me let me just throw out i'll suggest you that there are at least three year marks here that suggest these are commissions instead of bonuses instead in addition to the history and tell me why this view was wrong one news that these are such a huge portion of at least this person's compensation well over two thirds in the relevant time period the second is that they are mandatory nondiscretionary and the third is that the check  may there may be the accrual was a basically ok this is the amount that could be paid out but that it was a charming condition in the illinois ways payment collection act the regulations in cases have recognized that employers can properly have as a condition for actual earning of interest for bonus and i would submit judge there is nothing that suggests that you can't do it for a commission because again committer were governed by the term are we are we talking about the same thing i thought you were referring to the provisions in the regulations of the stand true to the well please listen to me that allow an employer to say we're not in you unless you are  contrary so clearly illinois law recognizes an employer can set the terms and conditions for earning a commission as well as a bonus and in this case again this ultimately comes down to the ways payment of collection acts in force believe that the first decision supports that because what if if and which decision i believe i'm sorry it's firth the ink publishing a twenty three f second eleven seventy eight i don't know about you but i don't believe the illinois courts publish their suit in the federal court i apologize i asked for the best illinois case we're trying to interpret state law understood judge i  believe in our brief we have some cases about every first appearing cause i would have to go back and review our brief and i would be happy to submit that if i can locate an illinois decision that's similar to the first one you know your brief is what it is again i guess i see my my time is is getting short but i understand you know with regard to plaintiff's claim that the company could not change the terms and conditions of her compensation i think the case law is clear i believe that the office max agreement present was a general rule that's right i had understood though there to be an argument at least   judge i believe that there was testimony that she hadn't received her commission statement yet yeah because there were in the process of transition but but i would submit judge that she as far as whether there was an enforceable agreement she understood the admitted at her deposition in the record i think and i think the parties agree the record is undisputed she was made aware of the compensation change in july twenty four thousand she admitted she understood those terms and conditions she understood that she would not be eligible to receive quarterly incentive that she left before the payment was made and she admitted that those sir were later memorialized in the agreement but yes judge as far as well there wasn't a lay i understand in the record that about getting in the transition given that the way what how is it fair to infer play disagreement to the different terms if she's not yet really been told what they are she gets an old line on the phone on july fourteenth there's this ongoing discussion and who knows what it means that so she gets a payment i believe she admitted after her deposition she understood the essential turns and conditions of the compensation plan changed and that she admitted at her deposition that when she received the written document it was consistent with her understanding and that she ultimately was paid all money owed under that agreement now she disagreed with some of the changes but she admitted under the terms of those agreements she was paid all money so that that i just ask you briefly do you think this two hundred fifty dollar a month draw is required to comply with the illinois statute judge oh i see my time is not up i i believe in this case that because ms johnson as well as all the other sales reps receive a monthly salary that's a requirement of the illinois wage payment because of that monthly salary moreover the draw toward the commission i would submit that that was a monthly commission payment if you would deem it's a commission that would comply with the illinois law and would be trued up once the quarterly incentives  going inside but only you know if she's still an employee in the two hundred fifty dollars monthly drop by my estimate is about one day's worth of incentive payments for the players well it depends on again what her perform even her actual