Small Change: DE Superior Court Holds There Is No Distinction Between a “Probationary” And “Regular” Pay Rate In Calculating Wage Basis
I just got back from London and was musing to myself that the blog has once again been silent to long. Talk about an answered prayer . . . .
Today’s post is courtesy of David Boswell who broke out of the usual mold of sending me a case that he won. Pretty much squares with my assessment of David as an honorable and genial man, and zealous plaintiff’s advocate. Gertrude Kollock v. Allen Harim Foods, LLC, 2014 WL 5395759 (Del. Super. Ct. Oct. 7, 2014) (Bradley, J.) is an appeal of an Industrial Accident Board decision on the issue of an average weekly wage (AWW) calculation where in the 18 weeks leading up to the date of accident, the claimant was paid an probationary rate of $8.20 an hour, followed by a rate of $10.00 an hour after the completion of 90 days. David argued that in calculating the AWW, the Board should only look to the weeks claimant earned $10.00 an hour, as opposed to using the average of all 18 weeks of employment, which reflected a “blended” pay scale. The Board did not agree and issued a decision finding the AWW to be $347.49.
So follows the appeal and attached is the Court’s decision. Judge Scott Bradley affirmed the Board’s ruling, commenting that the language of 19 Del. Code Section 2302 is “clear and unambiguous.” That Section allows that if an injured worker is employed less 26 than but more than 13 weeks, you take the average. It is that simple.
Bottom line: Where the injured worker is paid varying hourly rates within the 13 to 26 week period of employment of Section 2302, the law recognizes no distinction between a “regular” and a “probationary” employee in calculating the average weekly wage, as this is irrelevant — “the deciding factor is the number of weeks the employee has worked.”
Practice Pointer: As a point of legal refinement, be reminded that weeks in which there are zero earnings ($0.00) are not counted in taking the average. See my post of 2/8/11 titled More from the DE Supreme Court: It’s all about the money, which discusses the DE Supreme Court ruling in Shirley Taylor v. Diamond State Port Corp., 14 A.3d 536 (Del. 2011).
And props to Gary Baker and Andy Carmine for an employer-friendly outcome.
Irreverently yours,
Cassandra Roberts
