News

January 04, 2009

Dominick’s Finer Foods v. Michael G. Stell, et al No. 08L50792

Our firm represented Dominick’s Finer Foods in a very important case involving the question of overtime hours being included in the claimant’s average weekly wage. The Commission found:

Petitioner earned a total of $50,220.04 for the 52 weeks prior to the accident, including overtime, yielding an average weekly wage of $965.77. Petitioner worked approximately 10 hours per week in overtime hours. The Arbitrator finds that petitioner’s overtime was regular, mandatory and a condition of employment. Thus, the Arbitrator finds Petitioner earning in the year preceding the injury to be $50,220.04, with an average weekly wage of $965.77.

The circuit court has reversed the Commission based on the language in the appellate court Airborne Express, Inc. case where the requirements for overtime are discussed. In the Dominick’s Finer Foods case, the employer argued that overtime should not be included because the claimant’s overtime was neither regular nor mandatory.

Did the claimant prove the overtime was regular? The court stated:

An examination of Claimant’s payroll history, Employer’s Exhibit 8, reveals that although Claimant worked overtime on a regular basis, his overtime hours varied substantially from a low of 0 or 2 hours per week to a high of 31.5 hours per week. There is no pattern of consistency in Claimant’s overtime hours; rather, his overtime hours ebbed and flowed substantially depending on Employer’s needs. Claimant indeed acknowledged that he did not consistently work a set number of overtime hours. Because it is undisputed that Claimant did not work a set number of overtime hours consistently each week, the Commission’s finding that his overtime was ‘regular’ is against the manifest weight of the evidence.

Was the claimant’s overtime mandatory? The court stated that the Commission’s finding that claimant’s overtime was mandatory is not against the manifest weight of the evidence, stating:

Claimant testified that he moved containers containing food, including fresh and other perishable foods. Because of the nature of the perishables he worked with, Claimant was often required to work overtime to finish his work. In addition, Claimant was also required to work overtime if another employee was absent. Claimant also testified that because he did not have seniority Employer would choose him to work overtime. Although Claimant at one point acknowledged that Employer sometimes offered overtime to those employees with seniority, he testified that Employer preferred employees with less seniority, like him, because they did more work. No evidence was offered to rebut Claimant’s testimony regarding his mandatory nature of his overtime. Though certain aspects of Claimant’s testimony regarding his overtime hours were ambiguous, the Commission’s finding that the overtime Claimant worked was mandatory is not against the manifest weight of the evidence.

So long as the overtime hours were mandatory, was the claimant required to establish that his overtime hours were part of a set number of hours consistently worked each week for his overtime to be included in the calculation of his average weekly wage? The court stated:

If there were any doubt that a claimant is required to show that his overtime is both mandatory and part of a set number of hours consistently worked each week for it to be included in the calculation of average weekly wages, one need only consider a subsequent passage in Airborne Express: ‘If merely working overtime on a regular, voluntary basis were sufficient to include the overtime hours worked in the calculation of an employee’s average weekly wage, the overtime exclusion in section 10 of the Act would be rendered meaningless.’ In other words, if overtime is ‘regular,’ it may only be included in the calculation of average weekly wages if it is also mandatory. Thus, Airborne Express makes clear that the exception to the general rule that overtime is excluded in the calculation of average weekly wages is a narrow – overtime may only be included when it is both a condition of employment and part of a set number of hours consistently worked each week. (emphasis supplied)

Since the average weekly wage found by the Commission needed to be revised, the circuit court could have referred the matter back to the Commission for the correct figures. Instead, the circuit court revised the average weekly wage from $965.77 to $751.24, with the appropriate TTD and PPD benefits of $583 and $450.74, respectively.

Editor’s Note: In a very well-reasoned opinion, the circuit court noted that the appellate court had not yet addressed a case where claimant’s overtime is mandatory or part of a set number of hours consistently worked each week, but not both. Erica Rogina, of our firm, is to be commended in obtaining a reversal of the Commission’s interpretation of the overtime requirement for the average weekly wage.

Dominick’s Finer Foods v. Michael G. Stell, et alNo. 08L50792

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, 19th Floor Chicago, IL 60606 (312) 855-1105