                                                                                     FILED
                                                                                 Apr 11 2016, 9:20 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
      Ronald E. Weldy                                             Bonnie L. Martin
      Weldy Law                                                   Steven F. Pockrass
      Indianapolis, Indiana                                       Ogletree, Deakins, Nash, Smoak &
                                                                  Stewart, P.C.
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dorothea Bragg, on Behalf of                                April 11, 2016
      Herself and All Others Similarly                            Court of Appeals Case No.
      Situated,                                                   49A02-1506-PL-653
      Appellants-Plaintiffs,                                      Appeal from the Marion Superior
                                                                  Court
              v.                                                  The Honorable Heather A. Welch
                                                                  Trial Court Cause No.
      Kittle’s Home Furnishings, Inc.,                            49D01-1406-PL-18569
      Appellee-Defendant.




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Plaintiff Dorothea Bragg was employed as a retail sales consultant by

      Appellee-Defendant Kittle’s Home Furnishings, Inc. (“Kittle’s”) from

      November of 2011 until September of 2013. Pursuant to the terms of Bragg’s
      Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016                           Page 1 of 36
      employment, Bragg earned a regular bi-weekly salary. She also had the

      potential to earn additional compensation, in the form of commission, if she

      completed a certain level of delivered sales. Bragg voluntarily terminated her

      employment at Kittle’s in September of 2013.


[2]   On June 4, 2014, Bragg, both on behalf of herself and on behalf of a proposed

      class of unknown current and former Kittle’s employees (the “unknown

      purported class members”), filed a lawsuit against Kittle’s. In this lawsuit,

      Bragg alleged that Kittle’s had failed to pay its employees earned commissions

      within the ten-day limit set forth in the Indiana Wage Payment Statute (the

      “Wage Payment Statute”). Of note, Bragg did not allege that Kittle’s had failed

      to pay her or any of the other unknown purported class members any

      commissions actually earned by the employees, only that Kittle’s failed to do so

      within the ten-day limit set forth in the Wage Payment Statute.


[3]   Kittle’s subsequently filed a motion to dismiss the lawsuit. With respect to the

      claims relating to any of the unknown purported class members whose

      employment had been involuntarily terminated by Kittle’s, the trial court

      granted Kittle’s motion to dismiss for lack of subject matter jurisdiction. With

      respect to the claims relating to Bragg, and seemingly any potential remaining

      unknown purported class members, the trial court converted Kittle’s motion to

      dismiss into a motion for summary judgment. After the parties submitted

      designated evidence and legal argument in support on their position on Kittle’s

      motion for summary judgment, the trial court granted summary judgment in

      favor of Kittle’s.

      Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 2 of 36
[4]   Upon review, we conclude that (1) the trial court lacked subject matter

      jurisdiction over the claims raised on behalf of any unknown purported class

      members whose employment with Kittle’s was involuntarily terminated

      because said unknown purported class members failed to first submit their

      claims to the Indiana Department of Labor (“DOL”) as required by the Indiana

      Wage Claims Statute (“Wage Claims Statute”); (2) the trial court did not abuse

      its discretion in denying certain discovery requests made by Bragg. We

      therefore affirm the judgment of the trial court; and (3) the trial court properly

      granted summary judgment in favor of Kittle’s on the claims raised by Bragg

      and any remaining unknown purported class members because the ten-day time

      limit set forth in the Wage Payment Statute did not apply to the commissions at

      issue as said commissions did not qualify as wages under the Wage Payment

      Statute.



                             Facts and Procedural History
[5]   Beginning on or about November 29, 2011, Bragg was employed as a retail

      sales consultant at the Kittle’s store located in Fort Wayne. Bragg continued to

      be employed by Kittle’s until she resigned from her position on September 1,

      2013.


[6]   As a retail sales consultant, Bragg received “chargeable draws toward

      anticipated future commissions on a bi-weekly basis.” Appellee’s App. p. 36.

      These “draws” were based on the number of hours Bragg worked each week

      “multiplied by a pre-determined rate per hour, thus providing her with a regular

      Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 3 of 36
      and predictable stream of income every two weeks.” Appellee’s App. p. 36.

      The draws were considered “chargeable” because “they counted toward the

      commissions that Bragg received based on her delivered sales for the prior

      month.” Appellee’s App. p. 36. “In the event that the commissions calculated

      on Bragg’s delivered sales for the prior month … exceeded her chargeable draw,

      [Bragg] received the excess in the form of a commission check.” Appellee’s

      App. p. 36. If the amount of delivered sales did not exceed Bragg’s chargeable

      draw, “then [Bragg] would not have received a commission check that month,

      but Kittle’s also would not have required her to write a check or make some

      other form of payment to Kittle’s that month to cover the difference, nor would

      Kittle’s have reduced her future draws.” Appellee’s App. p. 36.


[7]   It is undisputed that Bragg received commission payments on July 27, 2012,

      August 24, 2012, September 21, 2012, October 16, 2012, November 16, 2012,

      December 28, 2012, January 25, 2013, February 22, 2013, March 22, 2013,

      April 19, 2013, May 17, 2013, June 28, 2013, July 26, 2013, August 23, 2013,

      September 20, 2013, and October 18, 2013. It is also undisputed that on these

      dates, Kittle’s paid all commissions owed to Bragg.


[8]   On June 4, 2014, Bragg filed a complaint for damages, alleging a purported

      class action under the Wage Payment Statute on behalf of current and former

      employees of Kittle’s who had received “late payments of commissions on or

      after May 30, 2012.” Appellee’s App. p. 3. Bragg was the only named plaintiff

      identified. The complaint did not allege that any amounts remained unpaid as

      of the date of the initiation of the law suit. The complaint also did not indicate

      Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 4 of 36
       that Bragg or any of the unknown purported class members received a referral

       from the DOL for his or her claims.


[9]    On August 13, 2014, Kittle’s filed a motion to dismiss Bragg’s complaint. In

       this motion, Kittle’s sought dismissal on the grounds that the trial court lacked

       subject matter jurisdiction over the claims of any involuntarily terminated

       unknown purported class members who failed to exhaust the administrative

       remedies provided by the DOL. Kittle’s also sought dismissal on the grounds

       that Bragg’s commissions did not qualify as wages under the Wage Payment

       Statute. On October 27, 2014, the trial court issued an order converting the

       portion of Kittle’s motion to dismiss relating to the issue of whether Bragg’s

       commissions qualified as wages under the Wage Payment Statute to a motion

       for summary judgment and allowed the parties to conduct discovery on the

       wage issue for summary judgment briefing.1


[10]   The trial court scheduled a hearing on Kittle’s motion to dismiss for December

       5, 2014. Approximately five days before the hearing, on Sunday, November

       30, 2014, Bragg issued subpoenas to certain DOL personnel to appear at the

       December 5, 3014 hearing. Bragg sought to have the DOL personnel give

       testimony, which she believed might provide evidence which could be used in

       opposition to Kittle’s motion to dismiss. On December 4, 2014, the Indiana




       1
        This ruling would also seem to apply to the claims of any unknown purported class members
       who were either employed by Kittle’s at the time Bragg initiated the instant lawsuit or who
       had voluntarily terminated their employment at Kittle’s.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016        Page 5 of 36
       Attorney General’s Office filed a motion to quash the subpoenas. The trial

       court subsequently vacated the December 5, 2014 hearing date.


[11]   On December 10, 2014, the trial court granted the Attorney General’s motion

       to quash. Bragg filed a motion to reconsider this order on January 5, 2015.

       The trial court denied Bragg’s motion to reconsider on January 9, 2015. Bragg

       filed a motion requesting permission to depose the DOL personnel on January

       29, 2015. This request was denied by the trial court on February 2, 2015.


[12]   On March 13, 2015, the trial court issued an order granting the motion of

       Kittle’s to dismiss with respect to any unknown purported class members whose

       employment was involuntarily terminated, finding it lacked subject matter

       jurisdiction over such claims. On May 18, 2015, the trial court granted

       summary judgment in favor of Kittle’s, finding that, as a matter of law, the

       commissions paid to Bragg did not qualify as wages under the Wage Payment

       Statute.2 This appeal follows.



                                   Discussion and Decision
[13]   On appeal, Bragg challenges the trial court’s order dismissing the claims raised

       on behalf of the unknown purported class members whose employment was

       involuntarily terminated by Kittle’s. Bragg alternatively challenges the trial




       2
        Again, this ruling would also seemingly apply to any remaining unknown purported class
       members.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016        Page 6 of 36
       court’s denial of a discovery request made on behalf of the unknown purported

       class members whose employment was involuntarily terminated by Kittle’s.

       Bragg last challenges the trial court’s order granting summary judgment in favor

       of Kittle’s as to her claim against Kittle’s and those raised by any remaining

       unknown purported class members. We will review each challenge separately.


                                         I. Motion to Dismiss
[14]   Bragg, on behalf of the unknown purported class members whose employment

       was involuntarily terminated by Kittle’s, challenges the trial court’s order

       granting Kittle’s motion to dismiss. “Our review of a trial court’s ruling on an

       Indiana Trial Rule 12(B)(1) motion to dismiss where the facts before the trial

       court are undisputed, as here, is de novo.” Hollis v. Def. Sec. Co., 941 N.E.2d

       536, 537 (Ind. Ct. App. 2011) (citing Reel v. Clarian Health Partners, Inc., 917

       N.E.2d 714, 717-18 (Ind. Ct. App. 2009), trans. denied), trans. denied.


[15]   In granting Kittle’s motion to dismiss, the trial court found that it did not have

       subject matter jurisdiction over any unknown purported class members whose

       employment with Kittle’s was involuntarily terminated, because said unknown

       purported class members had failed to exhaust their administrative remedies

       pursuant to the Wage Claims Statute before filing the underlying lawsuit. In

       challenging the trial court’s order, Bragg claims that the unknown purported

       class members were not required to exhaust any administrative remedies

       because they properly brought suit under the Wage Payment Statute, rather

       than the Wage Claims Statute. Bragg alternatively argues that the failure to


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 7 of 36
       exhaust administrative remedies should be excused because the exercise of the

       applicable administrative remedies would be futile.


         A. Whether the Wage Payment Statute or the Wage Claims
                            Statute Applies
[16]   Bragg claims that the trial court erroneously determined that the Wage Claims

       Statute applies to any unnamed purported class members whose employment

       with Kittle’s was involuntarily terminated. In raising this claim, Bragg asserts

       that the question of which statute applies “is a matter of first impression

       because the issue has barely been analyzed to date by any appellate court.”

       Appellant’s Br. p. 15. However, we find this assertion curious, to say the least,

       because even a cursory review of relevant Indiana authority indicates that the

       appellate courts have considered this issue, on the merits, on numerous

       occasions. See Treat v. Tom Kelley Buick Pontiac GMC, Inc., 646 F.3d 487, 489-

       492 (7th Cir. 2011); Walczak v. Labor Works-Ft. Wayne LLC, 983, N.E.2d 1146,

       1149 (Ind. 2013); St. Vincent Hosp. and Health Care Center, Inc. v. Steele, 766

       N.E.2d 699, 705 (Ind. 2002); Hollis, 941 N.E.2d at 537-540; Gavin v. Calcars AB,

       Inc., 938 N.E.2d 1270, 1271-72 (Ind. Ct. App. 2010), trans. denied. The

       assertion is also curious because counsel for Bragg was also counsel of record

       on at least three of the prior cases where this specific issue has been analyzed by

       appellate courts, and therefore would have first-hand knowledge that this issue

       had, in fact, been decided. See Treat, 646 F.3d at 489-492; Hollis, 941 N.E.2d at

       537-540; Gavin, 938 N.E.2d at 1271-72.



       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016    Page 8 of 36
[17]   Be that as it may, in considering whether the Wage Payment Statute or the

       Wage Claims Statute applies to a plaintiff’s claim, the Indiana Supreme Court

       determined that “[a]lthough both the Wage Claims Statute and the Wage

       Payment Statute set forth two different procedural frameworks for wage

       disputes, each statute applies to different categories of claimants.” Steele, 766

       N.E.2d at 705; see also Hollis, 941 N.E.2d at 538-540; Gavin, 938 N.E.2d at 1272.

       In reaching this determination, the Indiana Supreme Court observed that:


               The Wage Claims Statute references employees who have been
               separated from work by their employer and employees whose
               work has been suspended as a result of an industrial dispute. I.C.
               § 22-2-9-2(a)(b). By contrast, the Wage Payment Statute
               references current employees and those who have voluntarily left
               employment, either permanently or temporarily. I.C. § 22-2-5-
               1(b).


       Steele, 766 N.E.2d at 705. We have subsequently applied the Indiana Supreme

       Court’s decision in Steele in both Hollis and Gavin. See Hollis, 941 N.E.2d at 538-

       540; Gavin, 938 N.E.2d at 1272.


[18]   Further, in reviewing the relevant Indiana authority regarding whether the

       Wage Payment Statute or Wage Claims Statute applied to a plaintiff’s claim,

       the Seventh Circuit has noted that “both of these statutes, and questions about

       their application, have received substantial attention from the Indiana state

       courts.” Treat, 646 F.3d at 488. The Seventh Circuit cited to the Indiana

       Supreme Court’s decision in Steele and our conclusions in Hollis and Gavin,

       stating:


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 9 of 36
               The language of the Indiana Code suggests, and the Indiana state
               courts have repeatedly confirmed, that the [Wage] Payment
               Statute provides an avenue for relief to employees seeking unpaid
               wages who voluntarily leave their employment or who remain
               employed and whose wages are overdue. The [Wage] Claims
               Statute, on the other hand, applies to employees seeking unpaid
               wages after their employer has fired them.


       Id. at 490.


[19]   Contrary to Bragg’s claim, multiple appellate tribunals have considered whether

       the Wage Payment Statute or the Wage Claims Statute applies to a plaintiff’s

       cause of action. Each of these tribunals makes it clear that an employee’s status

       at the time he or she files the claim is the relevant inquiry in determining

       whether to proceed under the Wage Payment Statute or the Wage Claims

       Statute. See Treat, 646 F.3d at 489-492; Walczak, 983, N.E.2d at 1149; Steele,

       766 N.E.2d at 705; Hollis, 941 N.E.2d at 537-540; Gavin, 938 N.E.2d at 1271-

       72. Thus, where a potential plaintiff’s employment was involuntarily

       terminated by their former employer, the applicable authority is clear, the Wage

       Claims Statute applies. See Treat, 646 F.3d at 489-492; Hollis, 941 N.E.2d at

       537-540; Gavin, 938 N.E.2d at 1271-72.


[20]   Therefore, we conclude that the Wage Claims Statute applies to the unknown

       purported class members whose employment was involuntarily terminated by

       Kittle’s. These unknown purported class members were therefore required to

       exhaust the administrative remedy provided in the Wage Claims Statute by first

       submitting their claims to the DOL. Steele, 766 N.E.2d at 705. They did not do


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 10 of 36
       so. Instead, Bragg, again on behalf of these unknown purported class members,

       improperly filed a complaint based on the Wage Payment Statute in the trial

       court. Because these unknown purported class members did not first submit

       their claims to the DOL as is required by the Wage Claims Statute, we conclude

       the trial court properly dismissed the claims raised by Bragg on behalf of the

       unknown purported class members whose employment was involuntarily

       terminated by Kittle’s. See Hollis, 941 N.E.2d at 540 (providing that because the

       Wage Claim Statute applied to plaintiff’s claims and plaintiff did not allege any

       Wage Claims Statute claims or submit his claims to the DOL, the trial court

       properly dismissed plaintiff’s claims).


           B. Whether Failure to Exhaust Administrative Remedies
                            Should Be Excused
[21]   Again, plaintiffs who proceed under the Wage Claims Statute may not file a

       complaint with the trial court but rather must first submit a claim to the DOL.

       Lemon v. Wishard Health Servs., 902 N.E.2d 297, 300 (Ind. Ct. App. 2009), trans.

       denied. Once a claim has been submitted to the DOL, the DOL’s responsibility

       is described as follows:

               (a) It shall be the duty of the commissioner of labor to enforce
               and to insure compliance with the provisions of this chapter, to
               investigate any violations of any of the provisions of this chapter,
               and to institute or cause to be instituted actions for penalties and
               forfeitures provided under this chapter. The commissioner of
               labor may hold hearings to satisfy himself as to the justice of any
               claim, and he shall cooperate with any employee in the
               enforcement of any claim against his employer in any case
               whenever, in his opinion, the claim is just and valid.
       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 11 of 36
               (b) The commissioner of labor may refer claims for wages under this
               chapter to the attorney general, and the attorney general may initiate
               civil actions on behalf of the [plaintiff] or may refer the claim to any
               attorney admitted to the practice of law in Indiana. The provisions of
               IC 22-25-2 apply to civil actions initiated under this subsection by
               the attorney general or his designee.


       Id. (quoting Ind. Code § 22-2-9-4) (emphasis in original). “It is evident that the

       Wage Claims Act contemplates that a [plaintiff] must approach the DOL before

       he or she is entitled to file a lawsuit in court to seek unpaid wages or penalties.”

       Id. “The DOL is then entitled to investigate the claim and refer the claim to the

       Attorney General, who may either institute an action on the [plaintiff’s] behalf

       or refer the claim to an attorney.” Id. at 300-01.


[22]   In concluding that a plaintiff seeking redress pursuant to the Wage Claims

       Statute must first submit the claim to the DOL before filing a lawsuit in court,

       we observed that “[t]he statute makes it clear that a claim must work its way

       through the proper channels—the DOL and, if need be, the Attorney General—

       before it may be brought into court.” Id. at 301. We further observed that “the

       plain language of the Wage Claims [Statute] requires that the letter be

       obtained—and the administrative process followed—before the lawsuit is filed.”

       Id. at 302.


[23]   We applied our conclusion in Lemon to our opinion in Reel v. Clarian Health

       Partners, Inc., 917 N.E.2d 714, 720 (Ind. Ct. App. 2009), trans. denied, in which

       we stated the following:


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 12 of 36
               We agree with Lemon that a [plaintiff] seeking redress pursuant to
               the Wage Claims Statute must first submit the claim to the DOL
               before he or she is entitled to file a lawsuit in court and that the
               act of filing a putative class action does not enable the putative
               class members to subvert the statutory requirements. Therefore,
               we conclude that the trial court properly granted Clarian’s Trial
               Rule 12(B)(1) motion to dismiss the purported wages claims of
               the proposed class of plaintiffs who had not sought review and
               referral pursuant to Indiana Code section 22-2-9-4. That is,
               because these proposed class members did not first pursue
               administrative proceedings, the trial court did not have subject
               matter jurisdiction over their purported wage claims.


       (Footnote omitted).


[24]   Despite our conclusions in Lemon and Reel, Bragg argues that the unknown

       purported class members’ failure to first submit any potential claims to the

       DOL should be excused.3 In support of this argument, Bragg asserts that

       submitting the potential claims to the DOL would be futile. We disagree.


[25]   In making the futility argument, Bragg cites to our opinion in Fox v. Nichter

       Construction Co., 978 N.E.2d 1171 (Ind. Ct. App. 2012), reh’g denied. In Fox, we

       outlined the DOL’s policies and powers, stating, in relevant part, the following:

               According to the DOL … [b]y statute, when the wage claim is
               submitted to the DOL it then becomes “the duty of the
               commissioner of labor to enforce and to insure compliance with



       3
         We note that counsel for Bragg was also counsel for the plaintiffs involved in both Lemon
       and Reel. See Lemon, 902 N.E.2d at 298; Reel, 917 N.E.2d at 715.



       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016          Page 13 of 36
        the provisions of this chapter, to investigate any violations of any
        of the provision of this chapter, and to institute or cause to be
        instituted actions for penalties and forfeitures provided under this
        chapter.” Ind. Code § 22-2-9-4(a). The DOL Commissioner
        may exercise the duty, or “may refer claims for wages under this
        chapter to the attorney general, and the attorney general may
        institute civil actions on behalf of the claimant or may refer the
        claim to any attorney admitted to the practice of law in Indiana.”
        Ind. Code § 22-2-9-4(b).

        If the DOL chooses to resolve the claim instead of making a
        referral … the DOL notifies the employer of the claim in
        writing…. If neither the [plaintiff] nor the DOL receives a
        response from the employer [within two weeks], then a final
        notice is sent to the employer providing for a one-week period of
        time in which to respond. [Indiana Department of Labor, Online
        Wage Claim Form, http://www.in.gov//dol/2734.htm (last
        visited Oct. 3, 2012)]. If the employer fails to respond to the final
        notice, then the DOL sends a copy of the wage claim file to the
        [plaintiff] along with a letter recommending that the [plaintiff]
        consult with an attorney or pursue the claim in court. Id.

        If the employer disputes the claim, however, the DOL will make
        a determination based upon the law and the documentation
        provided by the parties. Id. … It is the DOL’s position that the
        determination does not represent formal findings, nor is it
        binding on the parties. If the DOL cannot make a determination,
        the [plaintiff] “will receive notice along with a letter
        recommending that [he or she] consult an attorney or pursue
        [the] claim in the appropriate court.” Id.

        The DOL contends that it does not provide a formal claim
        resolution process and is not required to do so by law. The DOL
        considers the administrative process it provides to be more in the
        nature of mediation than a formal administrative review, and is
        not subject to judicial review.


Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 14 of 36
        Although the [plaintiffs] who are involuntarily separated from
        their employment must submit their claim to the DOL first
        before proceeding to court, it is the DOL’s practice to accept all
        claims regardless of whether they arise under the Wage Claims
        Statute or the Wage Payment Statute. [Steele], 766 N.E.2d at 705
        (claimant under Wage Claims Statute must submit claim first
        with DOL). The DOL has adopted this approach because it is
        consistent with the DOL’s statutory authority and promotes
        judicial economy by allowing all wage claimants the opportunity
        to resolve their wage disputes at the administrative level first.…
        The DOL argues that it benefits both the parties and trial courts
        to allow all [plaintiffs] to attempt to resolve their disputes
        administratively. When the DOL is able to resolve the claims to
        the satisfaction of both the [plaintiff] and the employer, then
        there is no need to present the claim in court.

                                                  ****

        The DOL’s position is that when it is unable to resolve the claim,
        the claimant “will receive notice along with a letter
        recommending [he or she] consult an attorney or pursue [the]
        claim in the appropriate court.” Indiana Department of Labor,
        Online Wage Claim Form, http://www.in.gov//dol/2734.htm
        (last visited Oct. 3, 2012).


Id. at 1177-78 (some brackets in original, some added). Bragg points to the

above-quoted language and claims that “[g]iven that the DOL has no

investigative or enforcement apparatus, then if any of the proposed

involuntarily separated Class Members had filed their claims with the DOL,

then it would clearly had not benefited them in any manner. The DOL could

not provide these wage claimants with a remedy or otherwise perform any

meaningful task with regard to their wage claims.” Appellant’s Br. p. 23. We,

however, find Bragg’s interpretation of Fox to be inaccurate.

Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 15 of 36
[26]   Contrary to Bragg’s interpretation, we read Fox to provide that once a claim is

       submitted to the DOL, the DOL has the power to work with the parties to try to

       resolve the claim, refer the matter to the attorney general, or provide the

       plaintiff with a recommendation to pursue the matter in the appropriate court.

       Each of these actions can provide a benefit to the plaintiff. Further, we observe

       that in attempting to resolve matters, the DOL acts in a manner similar to a

       mediator and engages in efforts to help the parties resolve their dispute without

       the need for litigation. The DOL’s policies and procedures promote judicial

       economy by allowing all wage claimants the opportunity to resolve their wage

       disputes at the administrative level first before engaging in the often time-

       consuming and expensive process of litigation. As such, we cannot agree with

       Bragg’s broad assertion that submission of any claims brought under the Wage

       Claims Statute to the DOL would be futile.


[27]   For the foregoing reasons, we decline Bragg’s request to excuse the unknown

       purported class members’ failure to first submit their possible claims to the

       DOL. As we concluded in Reel, we again conclude that in light of the unknown

       purported class members’ failure to exhaust their administrative remedies, the

       trial court did not have subject matter jurisdiction over the purported wage

       claims at issue. 917 N.E.2d at 720. We therefore further conclude that the trial

       court properly granted the Trial Rule 12(B)(1) motion by Kittle’s to dismiss the

       claims raised on behalf of the unknown purported class members whose

       employment was involuntarily terminated by Kittle’s. See id.




       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 16 of 36
                              II. Denial of Discovery Request
[28]   Bragg alternatively argues that the trial court abused its discretion in denying

       her request to depose certain DOL personnel in an attempt to gain evidence

       which she believes may have bolstered her futility argument.

               A trial court has broad discretion in ruling upon discovery issues,
               and we will interfere only where an abuse of discretion is
               apparent. [Brown v. Dobbs, 691 N.E.2d 907, 909 (Ind. Ct. App.
               1998)]. An abuse of discretion occurs only where the trial court’s
               decision is against the logic and natural inferences to be drawn
               from the facts of the case. Id. Due to the fact-sensitive nature of
               discovery matters, a trial court’s ruling is cloaked with a strong
               presumption of correctness on appeal. Id.


       Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 308 (Ind. Ct. App. 2000).


[29]   Bragg fails to point to any specific information which she believes that she

       would have been likely to gain by deposing the requested DOL personnel.

       Instead, her request seems to represent little more than a fishing expedition for

       some unknown piece of information which may, or may not, exist. As such,

       we conclude that the trial court did not abuse its discretion in denying Bragg’s

       request to depose certain DOL personnel in an attempt to gain evidence which

       she believes may have bolstered her futility argument.4




       4
         Because we conclude that the trial court did not abuse its discretion in denying Bragg’s
       request to depose certain requested DOL personnel, we need not consider Bragg’s alternative
       argument that the trial court could have converted the motion by Kittle’s to dismiss to a

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016         Page 17 of 36
                               III. Summary Judgment Order
[30]   Initially, we note that our analysis below is framed as whether the commissions

       paid to Bragg qualified as wages under the Wage Payment Statute. The same

       analysis, however, would apply to the commissions earned by any possible

       remaining unknown purported class member who was either employed by

       Kittle’s at the time Bragg filed the underlying lawsuit or who voluntarily

       terminated their employment at Kittle’s. Therefore, our resolution of Bragg’s

       claims also resolves any claims raised on behalf of any possible remaining

       unknown purported class members.


                                        A. Standard of Review
[31]           The purpose of summary judgment is to terminate litigation
               about which there can be no factual dispute and which may be
               determined as a matter of law. Bushong v. Williamson, 790
               N.E.2d 467 (Ind. 2003). On appeal, our standard of review is the
               same as that of the trial court. Summary judgment is appropriate
               only where the evidence shows there is no genuine issue of
               material fact and the moving party is entitled to judgment as a
               matter of law. Olds v. Noel, 857 N.E.2d 1041 (Ind. Ct. App.
               2006). “All inferences from the designated evidence are drawn in
               favor of the nonmoving party.” Hartman v. Keri, 883 N.E.2d 774,
               777 (Ind. 2008).


       McCausland v. Walter USA, Inc., 918 N.E.2d 420, 423-24 (Ind. Ct. App. 2009).

       Review of an order granting summary judgment is limited to those materials




       motion for summary judgment if it had permitted Bragg to depose the requested DOL
       personnel.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 18 of 36
       designated in the trial court. Naugle v. Beach Grove City Schs., 864 N.E.2d 1058,

       1062 (Ind. 2007). While specific findings of fact and conclusions thereon are

       not required, such findings, although not binding, may nonetheless aid our

       review of a trial court’s summary judgment order. Quezare v. Byrider Fin., Inc.,

       941 N.E.2d 510, 513 (Ind. Ct. App. 2011), trans. denied. Further, we may affirm

       a trial court’s order granting a motion for summary judgment on any grounds

       supported by the designated materials. Id.


                                  B. The Wage Payment Statute
[32]   The Wage Payment Statute, which is codified at Indiana Code sections 22-2-5-1

       through 22-2-5-3, governs both the amount and the frequency with which an

       employer must pay its employees. McCausland, 918 N.E.2d at 424 (citing

       Naugle, 864 N.E.2d at 1062)). Specifically, Indiana Code section 22-2-5-1

       provides, in relevant part, as follows:


               (a) Every person, firm, corporation, limited liability company, or
               association, their trustees, lessees, or receivers appointed by any
               court, doing business in Indiana, shall pay each employee at least
               semimonthly or biweekly, if requested, the amount due the
               employee. The payment shall be made in lawful money of the
               United States, by negotiable check, draft, or money order, or by
               electronic transfer to the financial institution designated by the
               employee. Any contract in violation of this subsection is void.

               (b) Payment shall be made for all wages earned to a date not
               more than ten (10) business days prior to the date of payment.


       Indiana Code section 22-2-5-2 provides that if an employer fails to comply with

       the ten-day requirement set forth in Indiana Code section 22-2-5-1(b):
       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 19 of 36
               Every such person, firm, corporation, limited liability company,
               or association who shall fail to make payment of wages to any
               such employee as provided in section 1 of this chapter shall be
               liable to the employee for the amount of unpaid wages, and the
               amount may be recovered in any court having jurisdiction of a
               suit to recover the amount due to the employee. The court shall
               order as costs in the case a reasonable fee for the plaintiff’s
               attorney and court costs. In addition, if the court in any such suit
               determines that the person, firm, corporation, limited liability
               company, or association that failed to pay the employee as
               provided in section 1 of this chapter was not acting in good faith,
               the court shall order, as liquidated damages for the failure to pay
               wages, that the employee be paid an amount equal to two (2)
               times the amount of wages due the employee.


             C. Whether Commission Earned by Bragg Qualifies as
                 “Wages” Under the Wage Payment Statute
[33]   In claiming that the trial court erred in granting summary judgment in favor of

       Kittle’s, Bragg argues that the designated evidence raises an issue of material

       fact as to whether Kittle’s violated the ten-day rule set forth in the Wage

       Payment Statute by failing to pay Bragg certain commissions within the

       required ten-day period. Kittle’s, for its part, argues that no issue of material

       fact remains because the commissions at issue did not qualify as wages under

       the Wage Payment Statute. Our resolution of this claim on appeal therefore

       turns on the question of whether, as a matter of law, Bragg’s commissions

       constituted wages as the term is used in the Wage Payment Statute.


[34]   Although the Wage Payment Statute does not define the term wages, the Wage

       Claims Act, again, codified at Indiana Code sections 22-2-9-1 through 22-2-9-8,


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 20 of 36
defines the term wages as follows: “all amounts at which the labor or service

rendered is recompensed, whether the amount is fixed or ascertained on a time,

task, piece, or commission basis, or in any other method of calculating such

amount.”5 It is well-established that in determining whether a method of

compensation constitutes wages for purposes of the Wage Payment Statute, the

name given to the method of compensation is not controlling. See Thomas v. H

& R Block E. Enters., Inc., 630 F.3d 659, 664 (7th Cir. 2011); Sheaff Brock Inv.

Advisors, LLC v. Morton, 7 N.E.3d 278, 285 (Ind. Ct. App. 2014); Quezare, 941

N.E.2d at 514; McCausland, 918 N.E.2d at 424; Davis v. All Am. Siding &

Windows, Inc., 897 N.E.2d 936, 943 (Ind. Ct. App. 2008), trans. denied; Kopka,

Landau & Pinkus v. Hansen, 874 N.E.2d 1065, 1072 (Ind. Ct. App. 2007); Gress v.

Fabcon, Inc., 826 N.E.2d 1, 3 (Ind. Ct. App. 2005).


        Rather, we will consider the substance of the compensation to
        determine whether it is a wage, and therefore subject to the Wage
        Payment Statute. [Gurnik v. Lee, 587 N.E.2d 706, 709 (Ind. Ct.
        App. 1992)]. We have recognized that wages are “something
        akin to the wages paid on a regular periodic basis for regular
        work done by the employee....” Wank v. St. Francis College, 740
        N.E.2d 908, 912 (Ind. Ct. App. 2000). In other words, if
        compensation is not linked to the amount of work done by the
        employee or if the compensation is based on the financial success




5
  As is discussed above, the Wage Claims Act relates to disputes over wages owed to an
employee whose employment has been terminated or suspended as a result of a labor dispute.
See Ind. Code § 22-2-9-2.

Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 21 of 36
               of the employer, it is not a “wage.” Pyle v. Nat’l Wine & Spirits
               Corp., 637 N.E.2d 1298, 1300 (Ind. Ct. App. 1994).


       Gress, 826 N.E.2d at 3. “Moreover, because the Wage Payment Statute

       imposes a penalty when wages are not paid within ten days of the date they are

       ‘earned,’ it is not practical to apply the statute to payments that cannot be

       calculated within ten days after being earned.” McCausland, 918 N.E.2d at 424

       (citing Highhouse v. Midwest Orthopedic Inst., 807 N.E.2d 737, 740 (Ind. 2004)).


[35]   In Thomas, the United States Court of Appeals for the Seventh Circuit (the

       “Seventh Circuit”) noted that “Indiana courts consider a variety of factors to

       guide their determination of whether compensation … constitutes a wage.” 630

       F.3d at 664. For instance, the Seventh Circuit noted that “Indiana courts are

       more likely to find compensation a wage if it is ‘not linked to a contingency.’”

       Id. (quoting Naugle, 864 N.E.2d at 1067). In this vein, the Seventh Circuit

       noted that the Indiana Supreme Court has explained that “payment contingent

       on factors outside of an employee’s or employer’s control ‘is not consistent with

       the time constraints imposed by the Wage Payment Statute’ … [and that]

       compensation is less likely to constitute a wage when it is difficult to calculate

       and pay within ten days after it was earned.” Id. (quoting Highhouse, 807

       N.E.2d at 740). The Seventh Circuit further noted that Indiana Courts also

       consider whether (1) the compensation directly relates to the time that an

       employee works, (2) wages are paid on a regular periodic basis for regular work

       done by the employee, and (3) the compensation in question is paid in addition

       to wages. Id.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016    Page 22 of 36
                                    1. Discussion of Relevant Authority

                                                     i. Thomas

[36]   In Thomas, the Seventh Circuit considered whether end-of-season commission

       payments paid to Thomas by H&R Block qualified as “wages” under Indiana’s

       Wage Payment Statute. Thomas worked as a seasonal employee for H&R

       Block, responsible for preparing clients’ tax returns and offering other financial

       products and services that H&R Block provides. Thomas, 630 F.3d at 662. As a

       result of her seasonal employment with H&R Block, Thomas was eligible for

       two forms of compensation, an hourly wage and potential end-of-season

       compensation. Id. Thomas was eligible for end-of-season compensation “only

       if the sum of various specified amounts exceeded the aggregate gross hourly

       wages paid to her during the tax season.” Id. Thomas was subsequently

       determined to be eligible for additional end-of-season compensation, after

       which H&R Block paid Thomas the applicable amount of end-of-season

       compensation. Id. at 663. Thomas later sued H&R Block arguing that

       although it had paid her all compensation owed to her, it had failed to do so

       within ten days as is required by the Indiana Wage Payment Statute. Id.


[37]   The Seventh Circuit found that Thomas’s end-of-season compensation was

       dependent on factors other than her efforts as a portion of the compensation

       was based on the contingency of collecting from customers. Id. at 666. In

       finding this to be a relevant contingency worthy of consideration, the Seventh

       Circuit noted that the “Indiana Supreme Court has not limited relevant

       contingencies to business performance and that imposing such a limit would be

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 23 of 36
       contrary to Indiana case law.” Id. at 667. The Seventh Circuit also found that

       Thomas’s end-of-season compensation was not directly related to the time she

       worked, noting that because the end-of-season compensation was partially

       based on collections, Thomas could theoretically have worked for an entire tax

       season without earning any end-of-season compensation. Id. at 666. Thomas

       also received an hourly wage in addition to any potentially earned end-of-

       season compensation. Id. In addition, the Seventh Circuit found that it was “at

       least difficult, if not impossible” to calculate the compensation within the ten-

       day period. Id.


                                                      ii. Gress

[38]   In Gress, we considered whether commissions paid to Gress by Fabcon qualified

       as “wages” under the Wage Payment Statute. Upon review, we found that

       Gress was employed by Fabcon as a sales engineer, regional sales manager, and

       national accounts manager. Gress, 826 N.E.2d at 1-2. His general job

       responsibilities included soliciting and developing new business for Fabcon;

       bidding/negotiating contracts; and participating in each of his projects through

       the final project billing, collection, and closure. Id. at 2. Gress was paid on

       both a salary and a commission basis. Id.


[39]   The commission payments at issue in Gress were paid on a monthly basis and

       represented either unearned advance payment for jobs shipped but not

       completed or final earned commissions on jobs for which all costs had been

       paid and actual profitability had been determined. Id. The commission

       payments fluctuated from month to month depending on the degree of activity
       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 24 of 36
       on Gress’s jobs, whether projects were closed out, and whether projects were

       profitable. Id. The amount of any tendered future advance payments was

       based off of anticipated profitability. Id. Once a project was “closed out,” the

       final commission was calculated and any sums due to the salesperson were

       paid. Id. A job was closed out when the accounting department determined

       that all job costs had been paid, the final payment had been received, and the

       actual profitability of the project could be determined. Id. This process could

       take anywhere from several months to a couple of years after shipment. Id. If a

       project was less profitable than anticipated, Gress might not receive any

       additional commission. Id. Further, if Fabcon lost money or earned no profit

       on the project, Gress was required to reimburse Fabcon for some or all of the

       advance payment which had been tendered to him. Id.


[40]   In determining whether Gress’s commissions qualified as “wages” under the

       Wage Payment Statute, we found as follows:

               Fabcon’s commission program is based upon the profitability of
               the salesperson’s individual projects. The salesperson earns no
               commission if the project does not result in a profit for Fabcon.
               The payment of commissions was not directly linked to the
               amount of work performed by Gress. To be sure, a salesperson
               could work for an entire year without earning any commissions if
               none of the projects were profitable. Moreover, although the
               commissions were paid once each month, the payments were
               based on the previous month’s accounting events for the
               project—whether all job costs had been paid, whether the job had
               “closed out,” and whether any determination had been made
               with respect to profitability—rather than on work performed by
               Gress in the previous month. In short, because of the length of

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 25 of 36
               time involved in determining the final commission, it was simply
               impossible for Fabcon to know what Gress was owed within ten
               days.


       Id. at 4 (internal record citations omitted). In light of all these factors, we

       concluded that Gress’s commissions were not “wages” within the purview of

       the Indiana Wage Payment Statute. Id.


                                                 iii. McCausland

[41]   In McCausland, we considered whether certain commissions paid to

       McCausland by Walter USA qualified as “wages” under the Wage Payment

       Statute. McCausland was employed as a direct sales manager for Walter USA,

       and was primarily responsible for managing salespeople and assisting them in

       making sales for the company. 918 N.E.2d at 422. He received compensation

       in the form of salary, commissions, and bonuses. Id. at 422-23. His

       commissions were dependent on the net sales for his district. Id. at 423.

       McCausland’s employment with Walter USA was terminated on April 1, 2007.

       Id. On September 17, 2007, McCausland filed suit against Walter USA alleging

       that he was entitled to damages under the Wage Payment Statute. Id.

       Specifically, McCausland argued that although Walter USA had paid him all

       commissions and bonuses due to him, Walter USA had failed to do so in within

       the time requirements of the Wage Payment Statute. Id. The trial court

       subsequently granted summary judgment in favor of Walter USA. Id.


[42]   Upon review, we concluded as follows:



       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 26 of 36
               McCausland’s commissions were based on the success of the
               salespeople he managed. While McCausland assisted the
               salespeople he managed in making sales, ultimately, those sales
               were directly attributable to a salesperson, and not McCausland.
               In other words, McCausland’s commissions were not directly
               linked to his own efforts. Moreover, the commissions were not
               based on gross sales, but on “net sales” which required a
               calculation of not only the gross sales but also other reductions,
               such as discounts and returns, which McCausland had little
               control over. Finally, McCausland’s commission could not be
               accurately calculated until Walter received all point of sales
               information from its distributors. Because McCausland’s
               commissions were based on the efforts of his sales team and “net
               sales,” and the commissions could not always be calculated
               within the statutorily mandated ten-days, we conclude that the
               commissions were not “wages” within the meaning of the Wage
               Payment Statute.


       Id. at 426.


                                                    iv. Quezare

[43]   In Quezare, we considered whether certain bonuses paid to Quezare by Byrider

       qualified as “wages” under the Wage Payment Statute. Byrider employed

       Quezare as a collections account representative. 941 N.E.2d at 511. As part of

       his employment, Quezare managed 290 accounts, each consisting of a loan on

       a vehicle sold by Byrider’s sister corporation, J.D. Byrider. Id. Queazre was

       teamed with four other account representatives and their primary responsibility

       was to prevent the accounts covered by their team from becoming delinquent.

       Id. Quezare was paid an hourly salary. Id. In addition, he was paid certain

       bonuses or commissions if less than a certain percentage of his accounts were


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 27 of 36
       delinquent. Id. Quezare subsequently filed suit against Byrider alleging that he

       was entitled to damages under the Wage Payment Statute. Id. Specifically,

       Quezare argued that although Byrider had paid him all bonuses due to him,

       Byrider had failed to do so in within the time requirements of the Wage

       Payment Statute. Id. The trial court subsequently granted summary judgment

       in favor of Byrider. Id.


[44]   With respect to the bonuses based on the percentage of the team accounts, we

       concluded that because the bonuses were dependent on the efforts of the team,

       those benefits did not constitute wages for purposes of the Wage Payment

       Statute. Id. at 514. With respect to the bonuses based on Quezare’s individual

       accounts, we concluded that even though the bonuses were calculated on a

       weekly basis, they were not earned merely by working for a week. Id.


               Rather, the bonuses [were] awarded only if the account
               delinquency goals [were] met. Thus, they [were] not necessarily
               paid on a regular basis. If the delinquency rate of an employee’s
               accounts [was] greater than the bonus percentage month after
               month, that employee will not earn any bonuses. Indiana courts
               have consistently stated that a bonus is a wage under the Wage
               Payment Statute if the bonus directly relates to the time that an
               employee works, is paid with regularity, and is not dictated by
               the employer’s financial success. [Tobin v. Ruman, 819 N.E.2d
               78, 88 (Ind. Ct. App. 2004), trans. denied]; [Pyle, 637 N.E.2d at
               1299-1300].

               In addition, we note that Byrider’s bonus plan is purely
               discretionary. Both pay plans provided that Byrider had the right
               to alter, adjust, or terminate the plan at any time, without notice.
               The discretionary nature of the plan also leads us to conclude

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 28 of 36
               that the bonus payments are not wages for purposes of the Wage
               Payment Statute. See Pyle, 637 N.E.2d at 1301 [ ] (concluding
               that bonus system was discretionary and therefore bonuses were
               not wages); [Wank v. Saint Francis College, 740 N.E.2d 908, 913
               (Ind. Ct. App. 2000)] (concluding that severance pay was not
               wage because it was a “discretionary, gratuitous benefit”).


       Id. at 514-15 (footnote omitted, brackets added).


                                      2. Commissions Earned by Bragg

[45]   In determining whether the commissions at issue qualified as wages under the

       Wage Payment Statute, we will examine said commissions under the factors set

       forth by the Seventh Circuit in Thomas.


                             i. Whether Commission Linked to Contingency

[46]   Initially, we note that Bragg claims that the contingency factor is “meaningless”

       to our analysis of whether the commissions at issue qualify as wages under the

       Wage Payment Statute. Appellant’s Br. p. 12. In making this claim, Bragg

       asserts that there is nothing “bonus-like” about the commissions at issue and

       that “[t]o date, the ‘other factors’ analysis has only been applied to commissions

       that are bonus-like.” Appellant’s Br. pp. 12, 13. We disagree and note that

       nothing in any of the relevant authority supports Bragg’s assertion that the

       contingencies factor should only be considered in the context of bonuses. 6

       Furthermore, we find nothing in the designated evidence that would seem to



       6
        We also note that, generally speaking, all commissions are bonus-like in nature, and that Bragg
       points to no relevant authority or designated evidence which would suggest otherwise.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016            Page 29 of 36
       differentiate the commissions involved in the instant matter from the

       previously-considered types of commissions.


[47]   Bragg also asserts that applying the contingencies factor to the consideration of

       whether the commissions at issue constitute wages under the Wage Payment

       Statute “would ignore the definition of ‘wages’ as articulated by the General

       Assembly.” Appellant’s Br. p. 13. However, it is of note that in Thomas, the

       Seventh Circuit rejected this very assertion, citing to Indiana case law which

       has expressly provided that because it is the substance of the compensation that

       guides our analysis, and not its label, commissions do not always constitute

       wages. 630 F.3d at 666 (citing McCausland, 918 N.E.2d at 424-26; Gress, 826

       N.E.2 at 4). It is also of note that in making this assertion, Bragg fails to

       acknowledge Thomas and the Indiana cases on which Thomas relies.


[48]   Bragg further asserts that because the courts have only considered the

       profitability of the employer’s company to be a relevant contingency, any other

       contingencies are irrelevant to the question of whether the commissions at issue

       constitute wages under the Wage Payment Statute. The Seventh Circuit

       expressly rejected a similar assertion in Thomas, noting that relevant Indiana

       authority indicates that a company’s performance “is merely one example of a

       contingency.” 630 F.3d at 667. In rejecting this assertion, the Seventh Circuit

       stated that “[t]he Indiana Supreme Court has not limited the relevant

       contingencies to business performance, and imposing such a limit would be

       contrary to Indiana case law.” Id.



       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 30 of 36
[49]   In the instant matter, the designated evidence contained numerous types of

       contingencies that affected whether Bragg earned commissions. Commissions

       were not earned by sales alone, but rather by “delivered sales.” Appellee’s App.

       p. 43. As such, commissions were dependent upon the payment for and

       acceptance of delivery of the item by the customer. In addition, if employees

       worked together on a sale, any commissions earned as a result of said sale could

       be divided among the employees.


[50]   Further, because commissions were dependent upon delivery, numerous factors

       which might take place after the initial sale, all of which were outside of Bragg’s

       control, could potentially affect whether Bragg earned commissions. For

       example, Bragg would not be entitled to commissions if, after the initial sale,

       the customer decided to return the item or cancel the order. The amount of

       commission earned would be also affected if there was a subsequent price

       adjustment to the item, which would negatively impact the amount of profit

       earned by Kittle’s on the sale. Therefore, even if a commission was ultimately

       earned, because said commission was dependent on delivery, numerous factors,

       again all of which were outside of Bragg’s control, could impact when said

       commission was actually earned. For instance, factors such as product

       availability, weather conditions, a customer’s location, and a customer’s

       availability could impact when delivery was made. The type of order could

       also impact delivery as some custom orders could take as many as sixteen

       weeks for delivery.




       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 31 of 36
[51]   The designated evidence also outlines the process by which Kittle’s calculated

       commissions earned by its employees. In order to track monthly deliveries for

       commission purposes, Kittle’s maintained a “commission edit list.” Appellee’s

       App. p. 37. This list would be made available for employees to review on the

       fourth day of each month. Employees would then review the list and work with

       store management to resolve any potential discrepancies. Once finalized, the

       information would be manually imput and commissions calculated. The

       commissions earned were then sent to an outside payroll service for processing.

       The entire process took multiple days to complete.


[52]   In light of the numerous factors involved in determining whether and when a

       commission was earned by an employee, we conclude that the designated

       evidence demonstrates that the commission could not always be quickly and

       accurately calculated within the ten-day time constraint set forth in the Wage

       Payment Statute. This factor supports the determination that, as a matter of

       law, the commissions at issue did not constitute wages under the Wage

       Payment Statute. See generally, McCausland, 918 N.E.2d at 424 (citing

       Highhouse, 807 N.E.2d at 740 (noting that because the Wage Payment Statute

       imposes a penalty when wages are not paid within ten days of the date they are

       earned, it is not practical to apply the statute to payments that cannot be

       calculated within ten days after being earned)).


                                          ii. Relation to Time Worked

[53]   We have previously concluded that if compensation is not linked to the amount

       of work done by an employee, it is not a wage. Hansen, 874 N.E.2d at 1072. In
       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 32 of 36
       Gress, we noted that “[t]o be sure, a salesperson could work for an entire year

       without earning any commissions if none of [their] projects were profitable.”

       826 N.E.2d at 4. The same can be said here.


[54]   The designated evidence here demonstrates that the payment of commission

       was not directly linked to the amount of work performed by Bragg.

       Commissions were not earned merely by working for a week. Rather, they

       were awarded only if the salesperson completed delivered sales. Thus, while

       potentially unlikely, it is at least possible that Bragg could have worked for an

       entire month without completing any “delivered sales.” If that were the case,

       Bragg would not earn any commission for that month. Thus, we conclude that

       this factor supports also the determination that, as a matter of law, the

       commissions at issue did not constitute wages under the Wage Payment

       Statute. See generally, Hansen, 874 N.E.2d at 1072 (providing that if

       compensation is not linked to the amount of work done by an employee, it is

       not a wage).


                                         iii. Payment on Regular Basis

[55]   Bragg seems to acknowledge that the amount of any commission earned could

       vary greatly from month to month. She asserts, however, that we should find

       the fact that Kittle’s had a regular monthly payment schedule in place for the

       payment of any commissions earned by their employees to be evidence

       demonstrating that the commission payments paid by Kittle’s were made on a

       regular basis.


       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016    Page 33 of 36
[56]   In Quezare, we considered whether certain bonus payments were paid on a

       regular basis. 941 N.E.2d at 514. We concluded that although the bonuses

       were calculated on a weekly basis, they were paid only if certain goals were

       met. Id. Thus, the payments were not necessarily paid on a regular basis. Id.

       Similarly, here, although commissions were calculated and paid on a monthly

       basis, any commissions paid were dependent upon “delivered sales” being

       completed by Bragg. Further, although Kittle’s followed a specific schedule for

       determining if any commissions had been earned, commission payments were

       not paid on any pre-scheduled date, but rather varied from month to month.

       Because the amount of any monthly commission payment could vary greatly,

       and could even include months where no commission payment was earned by

       Bragg, we conclude that like in Quezare, the commissions at issue here were not

       made on a regular basis. We therefore conclude that this factor supports also

       the determination that, as a matter of law, the commissions at issue did not

       constitute wages under the Wage Payment Statute.


                                                  iv. Other Wages

[57]   Bragg acknowledges that the commission payment was paid by Kittle’s in

       addition to her salary. She asserts, however, that this fact is “meaningless”

       because there is no statutory authority limiting an employee to only one type of

       wage. Appellant’s Br. p. 11. We agree that Bragg was not limited to earning

       only one type of compensation. However, we believe that the fact that Bragg

       could potentially earn different types of compensation—one being her salary

       which undoubtedly qualifies as a wage under the Wage Payment Statute—does

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 34 of 36
       not mean that each of the different types of compensation which she could

       potentially earn would automatically qualify as wages under the Wage Payment

       Statute. Rather, we conclude that the best practice is to examine each type of

       compensation independent of any other type to determine whether it constitutes

       a wage under the Wage Payment Statute.


                                                    v. Conclusion

[58]   In the instant matter, it is undisputed that Bragg earned commissions in

       addition to a regular salary and that Kittle’s has paid Bragg all earned

       commissions. As is discussed above, the designated evidence demonstrates that

       these commissions were not directly linked to the amount of work performed by

       Bragg, but rather were contingent upon numerous factors, over most of which

       Bragg had no control. These commissions were paid only when earned, and

       not on a regular basis. As such, we determine that, as a matter of law, the

       commissions did not qualify as wages under the Wage Payment Statute. We

       therefore conclude that the trial court did not err in awarding summary

       judgment in favor of Kittle’s on this ground.7




       7
         To the extent that Bragg relies on our opinion in J Squared, Inc. v. Herndon, 822 N.E.2d 633
       (Ind. Ct. App. 2005), we find Herndon to be distinguishable from the instant matter as our
       decision in Herndon did not turn on whether the commission at issue constituted a wage under
       the Wage Payment Statute. In Herndon, we considered whether the trial court erred in
       awarding damages to Herndon under the Indiana Wage Claims Statute. 822 N.E.2d at 639-
       641. The Wage Claim Statute provides that an employer is responsible for paying employees
       for wages and compensation due at the time of separation of the employee’s employment. Id.
       at 640 (citing Ind. Code § 22-2-9-2). Concluding that Herndon had earned commission by

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016           Page 35 of 36
                                                 Conclusion
[59]   In sum, we conclude that the trial court did not err in in dismissing the claims

       raised on behalf of the unknown purported class members whose employment

       was involuntarily terminated by Kittle’s or in awarding summary judgment in

       favor of Kittle’s. As such, we affirm the judgment of the trial court.


[60]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       securing sales on order prior to the termination of his employment and that J Squared had
       failed to pay Herndon the earned commission, we affirmed the trial court. Id. at 641.

       Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016          Page 36 of 36
