Commission Or Piece-Rate?

The FLSA establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

Commission or piece-rate? The Fair Labor Standards Act (FLSA) generally requires employers to pay employees at one-and-a-half times their hourly rate for every hour that they worked per week in excess of 40 hours. There are exceptions, though, and an Illinois federal court recently handed down a decision which illustrates one of them: Employees that are paid commissions on goods or services sold are exempt from overtime pay – if certain criteria are met – whereas employees who are paid piece-rate are not.

At first blush, the distinction is not an easy one to make. In both cases, the employee’s compensation appears to depend on his or her output. The former is not earned, however, until a sale is actually made. That’s the rub, and it was demonstrated in Alvarado v. Corporate Cleaning Services.  There, a group of window washers sued their employer for violating the FLSA. They claimed that they were paid piece-rate for their work – effectively for the number of windows that they washed. But the U.S. District Court for the Northern District of Illinois disagreed. It explained:

Here, the abundance of window-washer work at CCS does tend to obscure that window-washer pay is still dependent on sales.  But the only reason that there is a regular workflow is because CCS is such a big player in the industry and is extremely successful.  Part of this success is based on the company’s compensation system, which incentivizes window washers to work efficiently and, in turn, to increase the number of sales that CCS can make and complete.  Thus window washers’ work is still dependent on sales.

If you’re an employer that pays by commission ask yourself whether your employees earn their “commissions” for each item made or service performed or whether their “commissions” depend upon a sale. The distinction is an important one, and it may allow you to take advantage of the Alvarado exemption.

Affirming Dismissal, Seventh Circuit Holds Window Washing Business Is a “Service” Establishment and Its Employees Are Paid on a “Commission” Basis, Bringing Clarity to Application of 7(i) and Sharply Criticizing DOL Regulations and Its Application of 7(i)

In one of the most comprehensive circuit court opinions to address application of Section 207(i) of the FLSA—the provision of the law that allows employers to comply with the overtime provisions of the FLSA by paying commissioned employees of a retail or service establishment at least 1.5 times the minimum wage, instead of their regular hourly rate—the Seventh Circuit, in an opinion by Judge Posner, has clarified this section which recently been the subject of increasing litigation in the federal courts. Alvarado v. Corporate Cleaning Servs., 2015 U.S. App. LEXIS 5270 (7th Cir. Apr. 1, 2015).

The Court directly addresses two of the core requirements in applying 7(i): (1) what is a “commission” for purposes of 7(i); and, (2) what types of establishments constitute a “retail or service establishment.” In doing so, the Court rejects DOL regulations, noting the DOL (who submitted an amicus brief on behalf of the employees) has, in its interpretation of 7(i), become “obsessed with its incomplete, arbitrary and essentially mindless catalog of sellers lacking a ‘retail concept.’” The Court also criticizes the Plaintiffs’ attorneys for seeking a voluntary dismissal to avoid an adverse ruling on appeal, with the Court refusing to dismiss the case even though the parties filed a joint stipulation of dismissal. For these reasons, the opinion is a “must-read” for anyone considering FLSA compliance through application of 7(i).

Plaintiffs in Alvarado were window washers. They were paid using a point system, where each job was assigned a certain number of points, which were then multiplied by a rate to determine their pay. Points were assigned based on the complexity of the task and the number of hours the job was expected to take. Plaintiffs were not paid overtime wages at 1.5 times their regular rate of pay for the hours they worked in excess of forty hours per week.

Plaintiffs argued Section 7(i) did not apply because they were paid on a piece-rate system, not a commission basis, and that the defendant’s business was not a “retail or service establishment” because it lacked a “retail concept.” The Seventh Circuit disagreed. Addressing first the commission versus piece-rate conundrum, Judge Posner explained that “nomenclature is not determinative” and that word “commission” need not be used for 7(i) to apply. He then rejected the dueling tests urged by the parties (and the DOL)—i.e., whether the compensation bore an “identifiable and consistent correlation” to the price charged to the customer (Plaintiffs’ test) or whether the compensation was “proportional and correlated” to the price (Defendants’ test). Instead, he explained, the distinction between the two compensation schemes is much simpler: in a piece-rate system, “a worker is paid by the item produced” regardless if there has been an actual sale; whereas in a “commission system,” the worker is paid a specified amount only when there has been a “sale.” An employee working in a piece rate system, for example, is paid for producing goods for inventory for potential future sales (which are not guaranteed) but for a commissioned employee, they are only paid if there has been a sale.

The Court also noted that typically commissioned employees work irregular hours—which was consistent with the work performed by the window washers, who worked fewer hours in the winter and during inclement weather. And that is consistent with the purposes of 7(i), which was to level the compensation for those who work irregular hours.

Turning to the second issue—whether the defendant operated a “retail or service establishment”—the Court explained that a “service establishment” is “much broader” than a “retail establishment” and noting that the statute applies to “retail establishment” or a “service establishment,” in the disjunctive, and does not require the “service establishment” to be a “retail service establishment.” The Court concluded the window washing services provided by the defendant was a service. But even if that were not enough (the Court held it was), the defendant was a “retail service establishment” too because it was not a wholesaler and provided a service to the ultimate consumer (again, a simple and straight forward standard readily interpreted and applied). It did not matter that the window-washing service was sold primarily to commercial and governmental buildings or that the building owners passed on the cost to the tenants.

The Court rejected the DOL’s decades-old regulatory list of establishments that “lack a retail concept,” finding the list provides “no explanation for the choice of which firms to describe as lacking a retail concept,” and describing it as a “mindless catalog” that is “arbitrary”. Finally, the Court distinguished cases applying the defunct 13(a)(2) exemption, which contained the term “retail or service establishment” (and a definition of it), finding that it bore no connection to Section 7(i), a provision enacted for a different purpose than the 13(a)(2) exemption (now repealed), which applied to intrastate employers.

This decision brings needed clarity to employers seeking to apply Section 7(i) to their workforce.

Click for pdf

UK Window Cleaning Thug Life

Navy personnel standing over the drugs seized from the yacht where Grimsby window cleaner was jailed for 8 years for role in £200m cocaine smuggling plot.

Grimsby window cleaner jailed for 8 years for role in £200m cocaine smuggling plot: Thomas Britteon, 28, of Convamore Road, was one of three men who were caught aboard The Makayabella – a yacht loaded with a tonne of cocaine – in the Irish Sea in September. At Cork Circuit Criminal Court heard, along with John Powell, 71, and Benjamin Mellor, 35, both from West Yorkshire, he pleaded guilty to having more that 13,000 euro worth of cocaine for sale or supply and having it on the yacht for the purpose of importation.

Window cleaner Britteon had been offered just over £14,000 – 20,000 euro – for his role in the operation – which had said he had thought would be like a Caribbean holiday. Powell’s 47-year-old son, Stephen Powell – who was jailed at Leeds Crown Leeds for 16 years last December for conspiracy to import the drugs – was described by Judge Seán Ó Donnabháin as being the brains and the money behind the crime.

The court heard John Powell bought The Makayabella in March 2014 on instructions from his son and was to be paid a six-figure sum for this part in the operation. More than 1,000kg of cocaine, packed into 41 bales, had been collected from the coast of Venezuala in August 2014 and packed onto the yacht. The trio had planned to rendezvous with a smaller vessel the Sea Breeze 16 miles off Rosslare a month later, with the aim of bringing the drugs back to the UK.

However, the Makayabella ran low on diesel and was under observation drifting at sea for two days.

Food supplies for the three men on the yacht had run out and they were extremely low on drinking water. The court heard, when they were eventually boarded by the Irish Navy, the trio had run out of food and diesel and were so hungry, one of them had begun to take the drug to repress his appetite.

Garda Inspector Fergal Foley said yesterday: “To be quite blunt they were delighted to see the Navy.”

He told the court the movements of the Makayabella yacht in the Caribbean were reported to the Maritime Analysis and Operations Centre after the RNLI came to rescue of the Sea Breeze 18 miles off Rosslare, on September 18. The vessel had run out of petrol but had several drums of diesel were found on board. Stephen Powell was also found on the ship.

A US naval vessel also observed the Makayabella appeared to be floundering 450 nautical miles off the coast and reported this to the US Maritime Information Centre. Backtracking information on the Makayabella to the Caribbean it was discovered that Mellor had to be rescued in the Caribbean where he was found floating in a dinghy and under the influence of cocaine.

The Makayabella was intercepted by the Irish Navy.

Acting on this information, a boarding party came aboard the ship on September 23, 217 nautical miles off the south coast of Ireland. The three immediately confessed their crime and the 41 bales of cocaine were seized. Powell was jailed for 10 years and Mellor – who had started to take the cocaine to stave off his hunger and was to be paid £71,636.35 – 100,000 euro – was jailed for eight years.

Judge Ó Donnabháin said: “This is a very significant crime in which the accused were involved knowingly. “They gave of themselves to go to sea in a yacht provided by Mr Powell from money from his son. “Mr Powell was more knowingly involved with the finances and sourcing of the boat and he stood get more out of it financially if the thing came to fruition. The other two men were roustabouts.”

Referring to the co-operation between intelligence agencies all over the world, he said, “It is encouraging to see the reach of agencies is in no way limited by territorial waters or economic areas of influence. It is encouraging to see there is no hiding place for drug importers.”

Ciarán O’Loughlin for Powell said the 71-year-old had a lot health difficulties and had no previous convictions of any kind. His father was a policeman. Alice Fawsett said Mellor, who broke his wrist on the voyage had been using drugs since the age of 12 and embarked on the operation to pay off a drugs debt, seeing this as the solution to all his problems. Michael O’Higgins said Britteon was working as a window-cleaner when he met Stephen Powell and that he agreed to sign up for what sounded to him like a Caribbean holiday.

The 51-year-old window cleaner, of Morgan Drive, Greenhithe, denied attempting to murder Dionne Norris, claiming he loved her and did not want to kill her. David Norris stabbed his wife at least nine times.

Greenhithe window cleaner David Norris stabbed wife Dionne at least nine times: A husband who tried to kill his estranged wife when he stabbed her at least nine times in a graveyard has been jailed for 20 years. David Norris wept as a judge told him: “I am satisfied this was a murderous assault.”

The 51-year-old window cleaner, of Morgan Drive, Greenhithe, denied attempting to murder Dionne Norris, claiming he loved her and did not want to kill her. But a jury of eight men and four women convicted him today by an 11-1 majority verdict. He had admitted wounding with intent. He will serve half the sentence before being released on licence.

Maidstone Crown Court heard Norris told his wife as he repeatedly plunged the knife into her: “I’m sorry, Dionne, if I can’t have you no one can.” He only stopped the attack when she “played dead” and a farmer disturbed him after hearing her screams.

The couple had been together for 30 years and married for 27 years. They had two children.

Mrs Norris, 45, said the relationship was good at first but it deteriorated as the years went by. “He treated me like dirt,” she said. An Arsenal supporter, she said she left him on August 28 last year, taking with her just her club shirt. She went to stay with Michael Bedford, who she met on Facebook and later started a relationship with.

On October 11 she and Norris agreed to visit her mother’s grave at Blue Bell Hill crematorium and then his grandmother’s grave at St Nicholas Church in Southfleet. Norris asked her if they could save their marriage, but she told him it was over. When they reached the churchyard in Southfleet he went to the boot of the car and she walked to the grave with flowers. “I noticed he was looking around,” said Mrs Norris. “I bent down to put flowers on the grave. He just lunged at me, He said: ‘I’m sorry, Dionne, if I can’t have you no one can.’

“He put his hands tight around my throat. I screamed. He put his hands over my mouth. I was on the ground by the grave. He was sitting on my legs. “I was trying to fight him off. I saw him taking a knife out of his pocket. I said: ‘Dave, think of the boys.’ He said: ‘---- the boys.’ “He stabbed me. I don’t know how many times. I was on my side. I couldn’t get him off. I was aware of a gentleman. David looked around and told him to ---- off.

“I thought he was going to kill me because of the evil in his eyes. I had to play dead. I said to him: ‘I can see my mum. Let me go and be with my mum.’ “I wanted to let him think he had killed me. He stroked my forehead and said: ‘Now go to sleep with your mum.’ I closed my eyes and held my breath. “I could see him slowly walking away. I opened my eyes and started screaming. The man came. He called the police and an ambulance came.” Mrs Norris was taken to a London hospital and treated for multiple stab wounds.

Jailed: Window Cleaner, Lee Brown turned violent after returning home from a night out.

Angry window cleaner breaks nearly every bone in man's face after discovering drunk babysitters with daughter: A furious father broke nearly every bone in a man's face when he discovered the people babysitting his 11-month-old daughter were drunk. Lee Brown turned violent after returning home from a night out to find a party going on at the home where his baby was being looked after.

The 23-year-old flipped and dragged Darren McKay out of the flat before punching him in the head in a brutal attack, reports the Newcastle Chronicle. When Brown finally backed-off, Mr McKay was taken to Wansbeck Hospital suffering from a broken forehead, nose, jaw and eye socket, as well as bruising, swelling and a deep cut to the face.

Now, Brown, of Katherine Street, Ashington, has been jailed for 17 months after pleading guilty to grievous bodily harm at Newcastle Crown Court.

Sentencing him, Judge Penny Moreland said: “You went to the house where your daughter was being looked after and, because you were unhappy with how she was being looked after, you assaulted Darren McKay.” Judge Moreland added: “What you did has had a substantial impact on the way he lived his life.”

The court heard the attack happened when Brown and his partner Natasha Snow returned after a night out on September 12 last year after hearing the people in charge of looking after their daughter for the night were having a party. Neil Pallister, prosecuting, said Brown dragged Mr McKay by the shirt down some stairs and out of the house. He was found later by fellow revellers slumped on the ground before an ambulance was called. Mr Pallister said: “He had gross swelling and bruising to his face, especially around the eyes. "He had a full thickness laceration to his eye brow and bruising to the elbow.”

Mr Pallister added: “There was a fracture to the forehead, the eye socket, the upper jaw and a possible nasal bone fracture.” Mr McKay was in Wansbeck Hospital for 48 hours, where his cuts were stitched but his fractures were not deemed to need further treatment. Mr Pallister said a foot imprint was also found on Mr McKay’s face, but Brown denied that was him.

Richard Bloomfield, mitigating, said some of the injuries were caused by someone else. He said: “He [Brown] made arrangements for the child to be baby sat so he could, if he wished, have a drink. “He then saw what he perceived to be a party going on around the child. There was loud music and alcohol being consumed. “He accepts he lost his temper and set about Mr McKay.” Brown, who has started his own window cleaning business, also pleaded guilty to one count of common assault for punching another reveller at the party.

Future Window Cleaners Will Have Fully Charged Phones

Future window cleaners will have fully charged phones soon by the look of it.

OK glass -  you'll soon be able to charge your phone from your window (Windows Update: transparent solar panels are almost here): A MIT startup has come up with a novel way of tweaking solar cells to remain transparent while still gathering usable energy from the Sun.

A transparent solar cell is difficult to build - solar cells traditionally capture energy by absorbing sunlight and converting it into electricity. A transparent cell, by definition, must allow sunlight through instead so it can reach your eye - that's why previous attempts at making see-through solar panels have only partially been transparent.

Ubiquitous Energy has been wrestling for years with that problem, but now has come up with a promising breakthrough. Instead of trying to make a transparent cell, they've built instead what they call a "transparent luminescent solar concentrator".

Here's how it works. The cell is made of plastic, and embedded in that plastic are chemicals that absorb non-visible wavelengths of light (infrared and ultraviolet). As they absorb them, they glow in another non-visible infrared wavelength, and that glow is guided to the edge of the plastic. There, thin strips of conventional photovoltaic cells absorb it and convert it to electricity.

Right now efficiency is low - only about one percent. But the researchers believe that an efficiency of ten percent is possible by the time the technology makes it to production. That's still half the effectiveness of a traditional solar cell, but if every window in a house or office block was converted then it could add up to a reasonable figure.

"It opens a lot of area to deploy solar energy in a non-intrusive way," Lunt said in an interview with Michigan State's Today blog. "It can be used on tall buildings with lots of windows or any kind of mobile device that demands high aesthetic quality like a phone or e-reader. Ultimately we want to make solar harvesting surfaces that you do not even know are there."

Near-infrared (NIR) harvesting transparent luminescent solar concentrators (TLSC) with non-tinted transparency are demonstrated by exploiting the excitonic nature of organic luminescent salts that provide perfectly tuned NIR-selective absorption and even deeper NIR emission. NIR TLSCs provide an entirely new route to more aesthetically pleasing light harvesting systems that can be widely deployed in energy scavenging windows and displays.

Ring Found In Window Washers Ring

Not your everyday window cleaning story!

Window washer stole $105K ring, stashed it in his rear (Naples, Florida) - Collier County sheriff’s deputies recovered a $105,000 wedding ring that they say was stolen by a Fort Myers window washer on Friday. But it will probably need a good cleaning after reports say the suspect stashed it in his butt.

Tralin Devon Russ, 23, faces a felony charge of grand theft over $100,000. The owners of a home on Audubon Boulevard in North Naples hired Russ and another man to clean their windows inside and out on Friday morning, according to an arrest report. That morning they found a $105,155, white gold wedding ring with a white stone, a $7,000 Breitling watch and about $200 in $20 bills were missing from their master bedroom.

They told investigators that Russ had been cleaning the inside windows while his partner was cleaning outside. A search of the suspects’ vehicle turned up the missing watch under the passenger seat, where Russ had been sitting, reports said. He later admitted to taking the jewelry, reached down the back of his pants, removed the ring from his rear end and handed it to a deputy, according to the arrest report.

Russ' partner is a contractor with Sabrina’s Gulf Coast Window Cleaning. He hired Russ to help him with the job, said Frank Sweeney, the owner of Sabrina's, which has been in business for over two decades.

Dorset Window Cleaning Trade Show - May 9th

Click to enlarge. Hey, that's me with my back to you (on the right).

WCP Trade Show in Dorset - May 9th 2015. Freshwater Beach Holiday Park, Burton Bradstock, Bridport, Dorset, DT6 4PT. Mark Munro says "I'd like to let you know about the WCP Tradeshow being held on 9th May 2015, this will be the biggest window cleaning show ever in the UK."

This show is going to be like no other that you have been to before and it will be full of the most amazing suppliers as you can see from the list below. During the day (10.00 am - 4 pm) there will be lots of window cleaning demonstrations and a few competitions, there will also be a licensed bar and food available as well.

Then if you would like to stay on longer, in the evening there will be a licensed bar available with music, auctions and raffles in aid of Cancer Research where we can all meet up for a chat. As the venue is a holiday camp, there is plenty to do (indoor/outdoor pools, bowling) so you could stay for more than the day if you wanted.

Event plan & layout - click to enlarge. It's still not to late to book for the show if you are interested in showing your business off!

There are special events & a competition timetable. When you've finished playing with all of those great window cleaning tools and maybe bought a few of them, enjoyed all of the demonstrations and introduced yourself to everyone you've been chatting to online why not stay on as there is a licensed bar which will be serving alcoholic drinks from 6pm until the early hours of Sunday morning along with a Dj playing lots of great music.

There will also be competitions in the evening with some fantastic prizes so don't rush off home, the show isn't all business we're here to have fun too and get to know each other.

FOR MORE INFORMATION PLEASE CONTACT ORGANISER markmunro009@btinternet.com

Click to go to site.

The prizes so far donated to the raffle & charity auction (it's not too late to add your own!):

Unger have kindly offered a nLite® HydroPower DI Starter Kit (DIK12), including everything you need to start cleaning with pure water at heights of up to 6 m (20 ft).

Window Cleaning Warehouse have donated a Facelift BackPack, Ren mini pole,Facelift brush and all the fittings to go with the package.

Darren Ansbro donates a digital controller.

Daniel Churchouse has donated a ProGutter box set of all 4 attachments.

Mark Blundell from Aquafed for donates a Wireless Camera and Monitor.

Peter Rutherford from Safe Reach donates a controller.

Stephen Scargill from Aquaeous has kindly donated a 400llt Tank

Ian Sheppard Spring Europe donates one voucher for a V11 Digital + Pump & one voucher for a V11 analogue + Pump

Ionics Systems donate a 25ft Glyder Pole.

Becci Swan donates 4 hours of calling with data.

Be in for a chance to win!

Terry Burrows has offered for our Auction for Cancer research; A copy of his Guinness World Record Certificate, the 9.14 seconds World record set in BlackPool 2009. He will get it photocopied, framed and will Autograph this copy for the winner.

SpaceVac donate a SpaceVac 900 240v Wet and Dry High System – RRP £2295.00 this includes Nilfisk Vacuum, 12 metres of 50mm Poles, Flexi Hose, Cleaning heads and Remote Camera.

X-Line: James Daykin donates a pole, brush and a 'new to market' carbon fibre gooseneck.

Peter Fogwill donates 2 aqua Taps.

Karl Robinson donates 6 blogs for any window cleaners who want exposure by a Q&A session or would like to tell their story.

9 Bottles of Vision.

Alex Gardiner donates a six pack bundle of Supreme™ brushes.

Grippa tank give a 10% off a GrippaMAX System Voucher, also 2 reels of 8mm minibore hose, 2 reels of 6mm microbore hose.

Pure freedom donate voucher for a total of £250.00 to spend on anything they supply.

Just Janitorial for donate 4 x 5lts of traffic film remover.

plus more prizes to be announced on the day!

Wagtail reveal it's newest creation, this will change the way we window clean!

Window Cleaning Magazine UK - March 2015 Edition

March 2015 Window Cleaning Magazine, now online to read.

The March 2015 edition of the UK Window Cleaning Magazine is out now & available to download now from here. Window Cleaning magazine is the UK's digital magazine that brings you information and news articles aimed at the professional window cleaner. Each issue takes a look at various topics that affect window cleaners and their business. WCM also takes a look at new window cleaning products, and review some of the latest equipment being made available. This edition:

• The Liquidator - Getting up close and personal
• Want to use a canvassing company? - Top 10 tips if you want to do it yourself
• Pure2o launches new systems - Interview with Craig Mawlam
• Wagtail Swayless - What is it? Willie Erken of Wagtail explains all
• The Cleaning Show 2015, London
• Hating your competition is self defeating - Tony Evans explains why
• & much, much more

If you've been following the window cleaning series.... check out the latest release from Window Cleaning T.V. The crew yet again, follow Peter Artusa in "After Window Wars - Episode 4." This episode follows systems & practices in the workplace. Watch the episode in high definition here.

Window Cleaner Treated By Paramedics After Punching Window

A window cleaner was treated by paramedics for a wound to his hand after he got angry with a window.

Window cleaner treated by paramedics after punching window in anger: A window cleaner was treated by paramedics for a wound to his hand after he punched a window following a row with his girlfriend, a court heard.

Daniel Colquhoun, 23, of Westgate, Nafferton, was “in drink” when he punched the window at the premises of a health practitioner in Driffield causing £689 of damage, East Riding Magistrates heard.

Prosecuting, Colette Dixon said a witness called the police following the incident on the evening of October 14 last year.

She said the health practitioner discovered the damage the following morning and suffered “a considerable amount of upset” with having to clear up the mess and having the glass and logo replaced.

The court heard how the offence was aggravated because Colquhoun had previous convictions for similar matters. In interview, he told police he’d had an argument with his girlfriend and punched the window in “anger and frustration,” said Mrs Dixon.

Defending, Tim Bishop said Colquhoun was no longer in a relationship with the woman. He said he was working as a self-employed window cleaner, but was hoping to gain his HGV licence. The court heard that Colquhoun was currently the subject of a community order made by York and Selby Magistrates under which he must carry out unpaid work.

Chairman of the bench Michael Bowman told Colquhoun: “Because of your past record and the fact that you are currently on a community order we are going to adjourn this case for a full report.” Colquhoun, who pleaded guilty to the offence of criminal damage, must return to East Riding Magistrates’ Court on May 6 when he will be sentenced.