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Allegations of Minimum Wage Violations Do Not Increase AWW Calculations

Happy Monday dear readers!

Your humble blogger missed you all very much.  So, does separation really make the heart grow fonder?

Well, I brought you something very special from my travels – a blog post about calculating average weekly wages!   (You were, expecting, perhaps, a t-shirt or a coffee mug?)

Except for those rare workers’ compensation cases where the average weekly wages exceed the statutory maximum (think registered nurses, perhaps?), carries a potential issue over average weekly wage.  That magical little number determines the temporary and permanent disability rates.  Sometimes it can even be used to calculate the relative exposure for a cumulative trauma case where there are multiple employers and/or insurers.

Recently, the WCAB (quite rightly) affirmed a trial judge’s ruling on how to calculate average weekly wage, in the panel decision of Jacobs v. Institute on Aging.

Applicant was working for the defendant for about 10 months when he sustained an admitted injury.  He testified to working about 49 hours per week.

Applicant’s counsel claimed his average weekly wage should have been $625.26, while defendant was arguing for an AWW of $403.95.  After reviewing the wage statement, the WCJ calculated an AWW of $416.69.  Applicant petitioned for reconsideration.

Assuming applicant actually worked 49 hours per week, that comes out to an hourly rate of $8.50, excluding any potential overtime payment, but California’s minimum wage in 2014 was $9.00 per hour.

Applicant argued that the average weekly wage cannot be calculated in such a way as to allow a violation of the minimum wage laws.  Additionally, it looks like applicant’s counsel decided that a violation of Labor Code section 5813 and regulation 10561(b)(9)(B) was in order, for which the WCAB commissioners admonished her.

In any case, the WCJ relied on Labor Code section 4453(c), and calculated wages based on actual earnings.  In rejecting applicant’s contentions, the WCJ pointed out that the workers’ compensation appeals board is not the proper forum for wage and hour disputes.

Now, readers of this blog will understand that these most humble of internet pages have an incredible degree of hostility to a finding of any benefits being owed.   But, that aside, the theory offered by applicant in this case would drag in considerable other issues as well.  If the employee is not being provided wages because of a termination for cause, and the termination is allegedly some form of contract or legal violation, should the WCAB forum be the place to adjudicate that question?

What about immigration issues – if applicant argues that federal immigration law precluding the hiring of an illegal alien is somehow unconstitutional, should a WCJ be tasked with interpreting the United States Constitution, federal immigration law, and the workers’ compensation laws before overruling Congress?

Whatever allegations the injured worker might make as to broken promises of wages or even the violation of minimum wage laws, the workers’ compensation appeals board has enough to do without engaging in adventures through California’s entire body of law to find additional things to do.

Have a good week, dear readers!

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