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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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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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