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Woman suing for unpaid wages passes ‘duck test’

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Indiana Justice Mark Massa made repeated references in Wednesday’s decision to the “Duck Test” – if it walks like a duck, swims like a duck and quacks like a duck, it’s a duck – in a day laborer’s lawsuit to recover unpaid damages from a Fort Wayne company. The justices found Brandy Walczak’s lawsuit may proceed under the Wage Payment Act.

Labor Works is a day labor service that has an office in Fort Wayne. Day labor employees don’t have to report on a regular schedule, but must show up in the office on the day they’d like to work. Even if they work a job the day before, they must show up the next day and may not be assigned to the same place.

While she was working as a day labor employee for Labor Works, Walczak filed a class action lawsuit under the Wage Payment Act against Labor Works for unpaid wages. Labor Works argued that her claim should proceed under the Wage Claims Act because she was separated from the payroll at the time she filed the complaint. She filed the lawsuit on a day she did not work.

The trial court ruled in favor of Labor Works; the Indiana Court of Appeals ruled her claim should proceed under the Wage Claims Act and go before the Department of Labor.

In Brandy L. Walczak, Individually and on Behalf of Those Similarly Situated v. Labor Works - Fort Wayne LLC, d/b/a Labor Works,
02S04-1208-PL-497, the justices ruled that the question of whether Walczak is covered by the Wage Payment Act or the Wage Claims Act is jurisdictional as the resolution depends on what the meanings are of “voluntarily leaves employment” and “separates any employee from the pay-roll” used in those statutes.

The high court determined that “separates from the pay-roll” used in the Wage Claims Act means someone is fired, and Walcazk was not fired so she need not comply with the requirements of the Wage Claims Act. She sought work and was given work after filing her suit.

“Labor Works may say that all its employees are terminated after every shift and rehired the next day, like phoenixes rising daily from the ashes, but its employees, unlike those who have really been ‘separate[d] from the pay-roll,’ have a realistic expectation that if they show up the next day, they may receive a job assignment. In other words, Walczak is more duck than phoenix,” Massa wrote.

“Day labor employees are no less entitled to the statutory protections that the General Assembly has provided than any other Hoosier employees,” he continued. Walczak may proceed with her claim under the Wage Payment Act.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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