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 12-4 Filed 12/20/16 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION TIMOTHY D. WHITEMAN, individually, and on behalf of others similarly situated, CIVIL ACTION NO. 6: 16-cy-312 RP-JCM Plaintiffs, အ အ အ အ အ အ အ အ အ အ အ အ အ အ အ WARDLAW CONSULTING SERVICES, INC., WILLIAM F. WARDLAW, MICHAEL N. WARDLAW and REBECCA W. MEADOWS, Collective Action under 29 U. S. C. E 216 (b) Defendants. DECLARATION OF STEPHEN BREWSTER COUNTY OF MCLENNAN STATE OF TEXAS Pursuant to 28 U. S. C. G1746, STEPHEN BREWSTER declares: con con con 1. " My name is Stephen Brewster. 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 was employed by Wardlaw Claims Services (a DBA for various Wardlaw-related entities) from approximately August 1996 to in or around May 2016. In my final position, I was the Vice President of Claims Operations and was technically employed by the entity Wardlaw Consulting Services, Inc. As a result of my employment with Wardlaw Consulting Services, Inc., I have personal knowledge of and experience with Wardlaw Consulting Services, Inc. ' s procedures for compensating its higher-level supervisory and management personnel as well as the typical hours worked by those personnel. 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 carriers at an hourly rate per adjuster or on a tier billing based on the amount of a gross loss of a claim. Wardlaw then invoices the carrier, who in turn makes payment based on the hourly rate and number of hours of work performed by the adjusters or the set fee for the Case 6: 16-CV-00312-RP-JCM Document 12-4 Filed 12/20/16 Page 2 of 3 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 would 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. " 4. It is my understanding that this structure was originally put in place by company owners Michael (" Mike ") Wardlaw and William (" Bill'') Wardlaw, who exercised ultimately authority over all matters of significance with the company's operations, including hiring and firing. Rebecca Meadows is sister to Mike and Bill. While she was not as actively involved in the day to-day company operations as her brothers, she had influence and discretion in the hiring and firing of employees and was involved in my termination from the company. 5. I understand that the claim period in this case is no earlier than August 5, 2013, so when I refer to the " claim period, " I' m referring to the period of August 5, 2013 to the present. My only monetary compensation for my work at Wardlaw during the claim period came from receiving a percentage of the " bucket. " This was my commission. I was not paid a base salary, nor did anyone from Wardlaw ever represent to me that I would always receive a certain minimum amount of compensation regardless of the amount of commissions paid (or not paid)-whether that be per week, per pay period, per month or per year. My compensation came solely from my allotted percentage of commissions, which varied from pay period to pay period. I was not monetarily compensated in any other way nor was I promised any other monetary compensation. Throughout my employment during the claim period, I regularly and routinely worked more than 40 hours per work week. Wardlaw never paid me an overtime premium for any hours worked over 40 during any such work weeks. While my hours would vary based on the company's needs and would certain increase during catastrophe events (like hurricanes) requiring much more work and output for our carrier clients, it was typical for me to work at least over 60 hours in a work week. Wardlaw expected me to work whatever amount of hours necessary to perform the requirements of my job. 7. At any given time, there were approximately 15 other employees who were considered higher-level supervisor and management personnel and who were paid solely through a percentage of " the bucket, " like I was. They were described by various job titles based on their specific supervisor and/or management responsibilities, but regardless of their job title and responsibilities, they were all paid by the same commission procedure. There wasn' t a substantial amount of turnover in these positions, so I estimate that during the claim period, there may be approximately 20 current and former Wardlaw Consulting Services, Inc. employees who were compensated in the same manner as I was. Based on my observations, all of these higher level supervisor and management employees typically worked more than 40 hours per week and in fact, substantially more than 40 hours per week. Like me and to my knowledge, none of them were paid anything other than their assigned commission percentage and were never promised a minimum amount of compensation in any form or fashion. To my knowledge, none of them were paid an overtime premium for any overtime work. N Whiteman v. Wardlaw Consulting Services, Inc./Declaration of S. Brewster Case 6: 16-CV-00312-RP-JCM Document 12-4 Filed 12/20/16 Page 3 of 3 8. 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, the 30 of December 2016 in Waco, Texas. StaniewsR Stephen Brewster Whiteman v. Wardlaw Consulting Services, Inc./Declaration of S. Brewster 3