Woman suing for unpaid wages passes ‘duck test’

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.