ADAM F BOEHM, Applicant
ABEDO FITZPATRICK, Applicant (1)
THE EMPIRE ROOM, Employer
CAPITOL INDEMNITY CORPORATION, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed June 10, 2005
boehm . wsd : 101 : 1 ND § 4.10
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicants, Boehm and Fitzpatrick, were both bouncers at The Empire Room, a hip hop club in Milwaukee. They were injured in a shooting at the business in July 2002. The business closed shortly thereafter.
According to the employer's manager, Krohn, the employer had perhaps fifteen bouncers, and 8 to 12 worked on any given night. Transcript, 18. Boehm and Fitzpatrick were two of the employer's four best bouncers, and worked every night the employer was open. They apparently worked from the time the club opened, until the patrons left the club parking lot, which was 30 minutes to an hour after closing. Transcript, pages 22-23. By the end of their employment, Boehm was paid $150 per night and Fitzpatrick $85.
Initially, the club's usual hours were 9:30 to "closing" on Wednesday, Friday and Saturday nights, and then extra nights for special events once or twice a month. Transcript, pages 11-12, 18. Closing time was 2:00 on weeknights and 2:30 on weekends. However, in June 2002, near the time of the injury, the club hours were reduced so it was only open two nights a week. Transcript, page 17-18, 21-22. According to exhibit 2, Boehm and Fitzpatrick would have worked only 6 to 8 hours per week under the reduced schedule. Exhibit 2.
Neither Boehm nor Fitzpatrick dispute these details. Transcript, pages 42-43 (Fitzpatrick) pages 31-32 (Boehm). They agreed they worked Wednesday, Friday and Saturday on a regular basis, and sometimes other nights. They did not dispute they worked every night the employer was open or that they worked from 9:30 until closing or that closing was 2:00 a.m. on weeknights and 2:30 a.m. on weekends. They agreed that the employer employed perhaps fifteen bouncers. Fitzpatrick agreed the special events occurred only every couple of weeks. Transcript, page 42.
Under Wis. Stat. § 102.11(a)(1)(a)2 or (c), part-time workers' wages are generally expanded to full time. The expansion rule recognizes that a work injury at a part-time job may have full time vocational effects. In other words, a work injury may prevent a part-timer from working not only in the part-time job at which he was injured, but also other employment which he may hold or desire to hold.
However, an exception to expanding wage is recognized for a worker who intentionally limits himself or herself to part-time work. Wis. Stat. § 102.11(1)(f)2. Another exception applies to a worker who is part of a regularly-scheduled class of part-time employees. A member of a regularly scheduled class does not have his or her hours expanded to full time. Instead, his or her wages are limited to the number of hours established for the class, subject to a 24-hour minimum. See Wis. Stat. § 102.11(1)(am) and (f)1.
What it means to be part of regularly scheduled class is defined by statute as follows:
102.11(1)(am) ... An employee is a member of a regularly scheduled class of part-time employees if all of the following conditions are met:
1. The employee is a member of a class of employees that does the same type of work at the same location ...
2. The minimum and maximum weekly hours regularly scheduled by the employer for the members of the class during the 13 weeks immediately preceding the date of the injury vary by no more than 5 hours. Subject to this requirement, the members of the class do not need to work the same days or the same shift to be considered members of a regularly scheduled class of part-time employees.
3. At least 10% of the employer's workforce doing the same type of work are members of the class.
4. The class consists of more than one employee.
These requirements are summarized in the department's interpretative footnote as:
... To be part of a class, an employee must perform the same type of work at the same location, the scheduled working hours do not vary by more than five per week in the 13 weeks preceding the injury date, at least 10 percent of the employer's workforce perform the same type of work and a class must consist of more than one employee.
In this case, Boehm and Fitzpatrick's hours were reduced in mid-June 2002 when the club went from being open three to two nights per week so that the bouncers got six to eight hours a week. Krohn's testimony and exhibit 2. The men had been working five hours a night three or four nights a week prior to mid-June (15 to 20 hours), then went down to 2 nights a week (10 hours) or possibly only 6 to 8 hours. The condition in Wis. Stat. § 102.11(1)(am)2 as written applies not only to the variance between members of the class in any given week, but also to the week-to-week variance in maximum and minimum hours. That condition, thus, is not met in this case, and the ALJ properly expanded the wage to full time under Wis. Stat. § 102.11(1)(a)2 and (c).
cc:
Attorney Thomas M. Domer
Attorney Kurt Anderson
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