Whiteman v. Wardlaw Consulting Services, Inc. et al

Western District of Texas, txwd-6:2016-cv-00312


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Case 6:16-cv-00312-RP-JCM Document 12-3 Filed 12/20/16 Page 1 of 3 IN TIIE UMTED STATES DISTRICT COURT FOR TIIE WESTERN DISTRICT OF TEXAS 1YACO DTYISION TIMOT}TY D. WIIITEII{AN, $ individually, and on behalf of others $ similarly siluared S $ CIYIL ACTION NO.6:1Gcv-312-Plaintiffs, $ RPJCM $ v.$ $ WARTILAW CONSULTTNG $ SERVICES' INC., WILLIAM r'. $ WARDLAW,IVtrCHAEL N. $ Collective A.ction under WARDLAW and REBECCA W. $ 29 U.S.C. $ 216(b) MEADOWS, $ $ Defendants. S DECLARATION OF TIMOTHY D. WIIITEMAN coLNTY OF LAPORTE $ $ STATE OF INDIANA $ Pursuant to 28 U.S.C. $1746. TIMOTHY D. WHITEMAN declares: 1. "My name is Timoth,v D. Whiteman. I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. "I worked for the entit-v Wardlaw Consulting Sen'ices. Inc. ("Wardlaw") at the time of my termination in Ma1,'2016. I rvorked for the Wardlaw business operations from 1998-2001 and from 2004-2016.I understand that the maximum claim period in this case runs from August 5, 2013 to the present, so when I refer to the "claim period" in this declaration, I am referring to that period of time. I was the Director of Daily Claims for Wardlaw from April 2011 until my termination in May 2016.I worked remotely from my home in La Porte, Indiana. I worked an average of 60-70 hours per week in that position. During the claim period, Wardlaw Consulting Services, Inc., technically employed me. I had no ownership interest in any Wardlaw-related entities. 3. Wardlaw provides insurance adjusting services on a contract basis to various insurance carriers around the country. Generally speaking, Wardlaw provides the insurance adjusters to their client camiers at an hourly rate per adjuster or on a tier billing based on the amount of a Case 6:16-cv-00312-RP-JCM Document 12-3 Filed 12/20/16 Page 2 of 3 gross loss of a claim. Wardlaw then invoices the carrier, who in tum makes payment based on the hourly rate and number of hours of work performed by the adjusters or the set fee for the amount of the loss. This is Wardlaw's primary source of revenue generation. After Wardlaw would deduct certain expenses, the remainder of the incoming payments w-ould be used, in part, to compensate certain higher-level supervisory and management personnel, including me. That set-aside money was referred to by Wardlaw as "the bucket." Wardlaw referred to the payment of money from "the bucket" to these higher-level supervisory and management personnel as the "commission run." On numerous occasions, I witnessed both Bill Wardlaw and Mike Wardlaw o'commissions." referring to this compensation as 3. I was paid for my work as Director of Daily Claims on a commission basis only. I was paid a designated percentage of the money in "the bucket." These commission payments were my sole source of monetary compensation for my work at Wardlaw Consulting Services, Inc., apart from $192.35 that was paid to me each pay period for the specific. designated purpose of reimbursing me for my personal health insurance premiums. No one affiliated w'ith Wardlaw ever guaranteed me a base salary. I was never told that Wardlar.l'would pay me anlthing other than a certain percentage of commissions from incoming client payments. I was not provided with, nor was I ever promised, a base minimum amount of compensation, whether on a weekly basis, a pay-period basis, a monthly basis or an annual basis. Based on my compensation structure, no matter how low the incoming billing payments would be for a particular pay period. I would still receive only my allotted commission amount and nothing more, no matter how low the commission might be. It is my understanding that this commission structure was put in place by company owners Bill Wardlaw and Mike Wardlaw. 4. During the claim period, I consistently worked over 40 hours in each work week and was never paid overtime premium pay. 5. At any given time, there were around 15 Wardlaw employees in supervisory and/or management positions who were also paid the same way. Due to the fact that there wasn't a lot of turnover in these positions, there may be approximately 20 current and former Wardlaw Consulting Services, Inc. w-ho were in a supervisory andlor management position, performed overtime work and were paid on a commission-basis only during the claim period. It is my understanding that. just like me, these employees were paid their allotted commission percentage from "the bucket," with no guaranteed minimum and no other monetary compensation. Apart from variations in the percentage allotted to each employee, their pay structure was the same as mine. It is also my understanding that each one of these employees worked overtime hours during the claim period and likely worked a substantial amount of overtime hours, given the nature of the work and the demands of Wardlaw's carrier clients, especially following catastrophe events. Although these other employees were given various titles reflecting their areas and levels of responsibility in supervisory and/or management roles, they were all paid in the same way-solely through a percentage of "the bucket." To my knowledge, none of them were paid an overtime premium for their weekly hours worked over 40 during the claim period. 6. Iand these other higher-level supervisory and management employees would receive a "dashboard" report twice per week that would list the number of unpaid invoices for each of Wardlaw's carrier clients and the total amount that remained unpaid. This information would Case 6:16-cv-00312-RP-JCM Document 12-3 Filed 12/20/16 Page 3 of 3 help us get some idea of what level of compensation we might receive in the next pay period, based on anticipated incoming client payments. 7. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this, tn &O* of December 2016 in LaPorte, Indiana.