STATE OF MONTANA
DEPARTMENT
OF LABOR AND INDUSTRY
HEARINGS
BUREAU
| IN THE MATTER OF THE WAGE CLAIM | ) | Case No. 869-2004 & 1237-2004 | ||
| OF BRIAN S. KENNEDY AND TASHA L. | ) | |||
| KENNEDY, | ) | |||
| Claimant, | ) | |||
| ) | ||||
| vs. | ) |
Order on Motion For Rehearing
|
||
| ) | ||||
| JANE WALDIE, d/b/a THE OLD HOTEL, | ) | |||
| ) | ||||
| Respondent. | ) | |||
* * * * * * * * * * * * *
Respondent Jane Waldie d/b/a Old Hotel has requested that the hearing officer reconsider the determination in this matter. Despite this officer's order to do so, the claimants failed to respond to the respondent's request for rehearing. Accordingly, this redetermination shall proceed without the input of the claimants.(1)
The respondent bases her request for redetermination on what respondent perceives to be three deficiencies in the decision. First, the respondent contends that she was not properly credited with paying Brian Kennedy additional salary during his two weeks of salaried employment since Brian Kennedy worked only 6 out of ten days during that period yet he was paid for all ten days. Next, respondent takes issue with the hearing officer's Finding of Fact Number 17 in the decision wherein the officer concluded that the $100.00 check to Brian Kennedy on May 27, 2003 represented payment for a tip given to Kennedy by an Old Hotel customer. The respondent contends that there is no evidentiary predicate for this finding in the record and, therefore, this $100.00 amount should be credited against wages deemed to be owed to Brian Kennedy. Third, the respondent contends that the amounts paid to Tasha Kennedy in the two checks given to Tasha (check numbers 5307 dated May 24, 2003 and 5359 dated June 12, 2003) compensated her for all work that she had undertaken for Waldie. In arriving at this conclusion, the respondent argues that her testimony was not refuted that the dates on the checks were incorrect and did not correspond to the dates of work for which the checks represent payment.
In positing her first argument, the respondent cites to Admin. R. Mont. 24.16.204 (18). That administrative regulation pertains to determining whether an employee is exempt from the minimum wage and overtime requirements as provided by Mont. Code Ann. § 39-3-406 because that employee is employed in a bona fide executive capacity. Brian Kennedy's case did not implicate exempt status questions. Accordingly, the regulation cited by the respondent has no bearing on the determination in this matter.
It is clear, however, that Kennedy was in fact paid for two full weeks of salary when he in fact worked only 6 out of ten working days during those two weeks. There is no indication in the evidence that the additional payment was intended as a gift or loan. The parties agreed that the payment was a payment of wages. As the regulations make clear, the general rule is that a salaried employee need not be paid for any workweek in which he performs no work. The hearing officer is unaware of any statutory language or case law that would preclude the hearing officer from crediting the respondent with the additional 4 days of pay given to Kennedy even though he did not work those days. Crediting the respondent employer for all wages paid to Brian is not an offset. It is simply taking account of all wages paid to Brian. C.f., Shultz v. Bradley, 67 Lab. Cas. (CCH) P32,650 (E.D. Va. 1972)(Calculation of the amount due to a claimant for overtime is simply a matter of comparing the amount of wages owed to the employee against the amount of wages actually received by the employee). To fail to take account of all wages paid to Brian would result in a windfall to him that neither the law nor commonsense can justify.
As the respondent correctly points out, the value of the pay for those four extra days amounts to $300.00 ($1500.00 every two weeks divided by 10 days equals $75.00 per day times 4 days equals $300.00). This amount exceeds the amount found to be due to Brian Kennedy because of Waldie's failure to pay him wages for hours worked during May, 2003. Accordingly, the respondent's motion with respect to Brian's claim is well taken and Waldie is found not to owe any additional wages to Brian Kennedy. In addition, because Brian Kennedy is not owed additional wages, the amount of penalty associated with the wages originally found to be due to Brian cannot be imposed.
The motion as it relates to the $100.00 tip and Tasha's wages, however, is not well founded. The hearing officer disagrees with the respondent's assessment of the evidence adduced in this case. With respect to the $100.00 check to Brian, Tasha specifically testified that this check reflected a tip left by two customers of the Old Hotel for them. This provided ample evidence that the check should not be credited against amounts owed by the respondent to the Kennedys.
With respect to Tasha's hourly wage compensation, the respondent failed to maintain time records as required under Garsjo v. Department of Labor and Industry (1977), 172 Mont. 182, 562 P.2d 473. Tasha produced ample evidence through her testimony to show that she had worked hours during May for which she had not been compensated. Most notably, she testified that she had worked the Mother's three days on the Mother's Day weekend in May, 2003. She also testified that she had worked regular full time hours during June. The corresponding checks show that she was compensated correctly for her work in June but she was not compensated for her work in May. Tasha thus fulfilled her burden under Garsjo. Because the respondent failed to rebut that evidence with proper records to show that in fact Tasha was paid for her hours in May, Tasha is entitled to judgement in her favor on that issue. To come to the conclusion suggested by the respondent in her motion for reconsideration would be to ignore the following directive set out in Garsjo:
When the employee shows, as he did here, 'that he did in fact perform overtime work for which he was not properly compensated and produces sufficient evidence to show the extent and amount of such work as a matter of just and reasonable inference, the burden shifts to the employer to come forward with evidence of the precise amount of the work performed or with evidence to negate the reasonableness of the inference to be drawn from the evidence of the employee. And if the employer fails to produce such evidence, it is the duty of the court to enter judgment for the employee, even though the amount be only a reasonable approximation.' * * *."
Garsjo, 172 Mont. at 189, 562 P.2d at 477, citing Purcell v. Keegan, 359 Mich. 571, 103 N.W. 2d 494, 497. Under the facts of this case, the hearing officer finds no error in his earlier determination regarding the wages due to Tasha.
CONCLUSIONS OF LAW:
1. The respondent's motion related to crediting amounts paid to Brian Kennedy for days he did not work but for which he was paid is granted. The additional $300.00 in salary received by Brian more than compensated him for the $247.20 which was not paid to him. In addition, the penalty originally imposed by the hearing officer with respect to the $247.20 cannot be imposed as Brian was in fact paid all wages he was owed and the respondent, therefore, did not violate the wage law with respect to Brian's pay.
2. The portion of the respondent's motion related to the $100.00 check to Brian and the finding with respect to Tasha's wage claim is denied. The evidence adduced at the hearing (Tasha's testimony) supports the finding of the hearing officer with respect to the $100.00 check and the respondent's failure to compensate Tasha as required by law.
ORDER:
For the foregoing reasons, the final decision in this matter is modified to show that respondent does not owe Brian Kennedy any additional wages or penalty and Brian Kennedy's complaint is hereby dismissed. The respondent owes Tasha Kennedy $254.92 in additional wages and $140.21 in penalty as mandated by Admin. R. Mont. 24.16.7566. Respondent is ordered to tender a cashier's check or money order in the amount of $395.13, representing both unpaid wages and penalty, made payable to Tasha Kennedy, and mailed to the Employment Relations Division no later than 30 days after service of this decision.
DATED this 8th day of October, 2004.
DEPARTMENT OF LABOR & INDUSTRY
HEARINGS BUREAU
By: /s/ GREGORY L. HANCHETT
GREGORY L. HANCHETT
Hearing Officer
NOTICE: You are entitled to judicial review of this final agency decision in accordance with Mont. Code Ann. § 39-3-216(4), by filing a petition for judicial review in an appropriate district court within 30 days of service of the decision. See also Mont. Code Ann. § 2-4-702.
If there is no appeal filed and no payment is made pursuant to this Order, the Commissioner of the Department of Labor and Industry will apply to the District Court for a judgment to enforce this Order pursuant to Mont. Code Ann. § 39-3-212. Such an application is not a review of the validity of this Order.
1. By order dated August 30, 2004, the hearing officer ordered the claimants to respond to the request for rehearing no later than September 15, 2004. As of the date of the issuance of this ruling on this request for rehearing, the claimants have not responded. The August 30, 2004 order was sent by U.S. mail to the last known address of the claimants. That order has not been returned as undeliverable or unclaimed to this office. Accordingly, the hearing officer concludes that the claimants have of their own volition chosen not to respond and will issue this order without their response.