WHAT TO DO WHEN ONE SIZE DOES NOT FIT ALL – CALCULATING WAGES FOR THE “NON-REGULAR” EMPLOYEES
By Jared Vessell, VBM Attorney
Article written January 15, 2022
RSMo § 287.250 provides the method for calculation of wages to be applied to Workers’ Compensation benefits. When applying 287.250, the formulas are to be applied in descending order until a formula is reached that "applies to the particular facts of the case." Adamson v. OTC Calhoun Trucking, Inc., 212 S.W.3d 207, 213, 215 (Mo. App. S.D. 2007) (internal quotations and citations omitted).
If the wages are fixed by the week, month, year, day, hour, or output, the calculation is based upon a function of that actual pay. Section 287.250.2 would only apply if evidence was presented of gratuities, fringe benefits, or the provision of board, rent, housing, or lodging.
If the employee’s compensation is not fixed by any amount of time or output as outlined in RSMo § 287.250.1(1)-(4) then you will need to look further down the statute.
If the employee was employed for greater than two calendar weeks, RSMo § 287.250.1(5) would not apply.
We then would look at RSMo § 287.250.1(6). The section states: “[i]f the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.” As set forth above, if the employee was not paid by any fixed hourly wage, the wage cannot be determined by any preceding method under statute. (Emphasis added)
In these situations, it is important to look at the Employer and their employees. In addition, other employer’s employees can be compared if applicable. The plain text of RSMo § 287.250.1(6) requires both that the services rendered be similar and that they are “rendered by paid employees of the employer or any other employer.”
The courts have addressed this in prior cases involving volunteer firefighters. The courts have noted that in the absence of more specific evidence, the pay of a neighboring full-time firefighter is not indicative of pay of a volunteer firefighter. Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364 (MO. Banc 1987) (overruled on other grounds). Typically, in these cases you will find 287.250.4 is applied by the Administrative Law Judge or Commission.
Under RSMo § 287.250.4, “If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.”
The current Labor Commission decided a case in which they applied RSMo § 287.250.4 Haynes v. Hillis Dodge (Injury No. 15-040034 decided 2/21/20). In that case, the employee was hired to drive vehicles for the employer to and from auctions. He was paid the lump sum amount of $40.00 for each trip, regardless of how long it took him. The administrative law judge found that the employee's average weekly wage was $225.00 with a compensation rate for temporary total disability of $40.00 and permanent partial disability of $150.00.
The Labor Commission applied RSMo § 287.250.1-4 to reach its decision. In that matter, they stated the evidence presented did not apply to any of the sections of RSMo § 287.250.1. The duty of driving a truck to and from an auction was not a daily position even for the employer's other employees who handled local auction trips.
The Commission confirmed that the average weekly wage could not be fairly and justly determined in that matter using RSMo § 287.250.1-3. Therefore, it was the opinion of the Commission that, based on the facts in this case which they believed were exceptional, the employee should receive the statutory minimum for weekly compensation of $40.00. Accordingly, the Commission overturned the award of the trial judge who had awarded the employee 140 weeks of compensation, at a rate of $150.00 per week to $40.00 to per week.
The just and fair compensation for a non-regular employee could be the statutory minimum of $40.00 per week. It is important in situations in which this may apply to perform a thorough investigation to determine if the employee has been employed for more than two weeks and if so whether the provisions of 287.250 1-4 apply. If none of the provisions of 287.250 (1-4) apply, then 287.250.6 will need to be evaluated in regard to the services rendered by the injured employee and compare those to services of current employees of the employer. Any additional responsibilities of the paid employee can prevent that employee’s wages from being used for comparison under 287.250.6 as was the case in Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364 (MO. Banc 1987) (overruled on other grounds). The employee has the burden to prove every element of their case. This would include bringing forth any evidence of pay for similar services where such services are rendered by paid employees of other employers. Even in those situations, the employees of other employers would have to perform the same or similar services and not have any additional responsibilities for that employer.
Also, in situations in which deputy sheriffs are involved, their average weekly wage should be calculated using 287.021.3. This section is used to determine pay for sheriffs and deputies. That section states: The “average earnings” of a sheriff or deputy sheriff is his annual salary or fourteen dollars a day, whichever is greater.
If you have any questions on calculating wages, please don’t hesitate to reach out to our office.
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