On February 9, 2018, the U.S. District Court for the Eastern District of Texas conditionally certified a collective of call center loan officers in Dickens v. J.G. Wentworth Home Lending, LLC, Civil Action No. 4:17-cv-00642. In this loan officer overtime lawsuit, the court granted the plaintiff’s motion in part and denied it in part, over the company’s opposition. Jack Siegel, with co-counsel, represented the workers.
United States Magistrate Judge Kimberly C. Priest Johnson signed the order on February 9, 2018. The parties had consented to have her decide the motion. The company filed a response in opposition and a sur-reply, and the court held a hearing on January 31, 2018.
The order described the company as a Virginia limited liability company that sells home loan products over the telephone and through the internet. The plaintiff alleged that loan officers routinely worked over 40 hours a week and were not paid for those hours. He also alleged that the company did not accurately track hours worked and paid on a commission basis without overtime pay.
The company did not dispute that each loan officer had to sign a Loan Officer Compensation and Employment Agreement. Under that contract, loan officers were paid the greater of an hourly wage or a commission. The plaintiff alleged that when the commission was larger, loan officers were not paid the hourly rate, so overtime was not properly paid.
Scope of the collective. The company pointed to differences between call center and non-call center loan officers, and in reply the plaintiff conceded that loan officers outside call centers may operate differently. He narrowed the request to loan officers within call centers. The court found that call center loan officers were similarly situated.
The company also argued that pay varied. But the company conceded at the hearing that the call center loan officers were all under the same Loan Officer Contract. The court held that the plaintiff sufficiently alleged that he was a victim of a similar plan—the Loan Officer Contract—under which he did not receive overtime compensation.
In close paraphrase, the collective the court conditionally certified in 2018 included everyone employed by J.G. Wentworth Home Lending, LLC or WestStar Mortgage, Inc. within call centers in these roles during the three years before the order:
The definition included, but was not limited to, call centers in Arizona, Florida, Michigan, Pennsylvania, Texas, and Virginia.
Notice terms. The court attached three forms to its order: a Consent to Join, a Notice of Collective Action, and a Reminder. It also set these terms:
The pay plan here mixed hourly wages and commissions. The court focused on a single written pay plan that every call center loan officer signed. It treated that common contract as the policy that tied the group together.
The court also rejected the idea that workers must be identical. It said their positions need not be the same in every aspect. The question was whether they did the same basic tasks and were subject to the same pay practices.
The court-approved notice summed up the claim in plain words. It said the lawsuit claims loan officers worked more than 40 hours in most weeks, but, because they were paid on a Commission basis, they did not receive overtime pay.
Conditional certification is not a finding that J.G. Wentworth broke the law. The same notice stated that the court had not decided whether the company failed to pay overtime.
The FLSA requires covered employers to pay non-exempt employees overtime for hours over 40 in a workweek. As general information, overtime is owed at one and one-half times the worker’s regular rate of pay. Under a Department of Labor rule, commissions generally must be included in that regular rate (29 C.F.R. § 778.117). Learn more about how pay structure affects overtime.
The court applied, at the time of this 2018 order, the two-step Lusardi approach that it had used in other cases. At the first step, a lenient standard asked only for substantial allegations that the workers were victims of a single decision, policy, or plan. The second step, after discovery, came later.
Some federal appeals courts have since changed this approach — the Fifth Circuit in Swales v. KLLM Transport Services (2021) and the Sixth Circuit in Clark v. A&L Homecare & Training Center (2023).
Swales now governs federal courts in Texas, Louisiana and Mississippi. It rejected the two-step approach and requires the court to decide early, after any needed discovery, whether workers are similarly situated before notice goes out. Read more about collective action certification.
This page describes a 2018 court order. The time to join that collective was set by the court in that case. If you have worked in a similar role, the Siegel Law Group can evaluate your own claims.
Have you worked as a loan officer, mortgage banker, or loan originator in a call center? Were you paid commissions or the greater of an hourly wage or commission, and did you work more than 40 hours without overtime pay? A lawyer can review how you were paid. Learn more about unpaid hours and overtime, or contact the Siegel Law Group for a free consultation.
Related rulings: Smale v. AR Trinity Credit Services, another Eastern District of Texas case for commission-paid phone sales workers, and Woods v. Caremark, another call center overtime case.
Commission pay does not by itself end the right to overtime. A non-exempt worker who works more than 40 hours in a week is owed overtime under the FLSA, and commissions generally count toward the regular rate. Whether a loan officer is exempt depends on the job’s actual duties. The Dickens order did not address exemption at all.
It is a plan that pays a worker either an hourly wage or a commission, whichever is larger for the pay period. At J.G. Wentworth, each loan officer signed a contract with this setup. The plaintiff alleged that when commissions were larger, the hourly pay was dropped and overtime was not properly paid. The court did not rule on that claim.
The company argued that loan officers inside and outside call centers worked differently. The plaintiff conceded that loan officers outside call centers may operate differently and narrowed his request to call center loan officers. The court found that call center loan officers were similarly situated, pointing to the same Loan Officer Contract that covered all of them. The order granted the motion in part and denied it in part but does not say which requests it denied.
The 2018 order listed Loan Officers, Mortgage Loan Officers, Mortgage Bankers, Loan Originators, Mortgage Loan Originators, and any other like mortgage sales employee. Members had to have worked in a call center for J.G. Wentworth Home Lending or WestStar Mortgage. The window ran three years before the date of the order.
The Siegel Law Group is a national overtime and wage law firm devoted entirely to representing workers denied overtime pay. Where many firms include wage cases as a small part of a broader employment practice, the Siegel Law Group has built its entire practice around overtime litigation — and the results reflect that commitment: $100M+ recovered for workers, 50+ class and collective action certifications, and 100+ federal lawsuits filed in 27+ federal courts nationwide. Founding attorney Jack Siegel is a Bloomberg BNA contributing author on wage and hour law.
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