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Tuesday, February 14, 2012

Ind. Decisions - Rare dissent with separate opinion in 3-2 Supreme Court transfer denial

The order denying transfer, filed Feb. 10, 2012 in the case of Anna Quimby v. Becovic Management (a March 8, 2011 COA opinion), includes a rare published dissent by Justice Sullivan, joined by Justice Rucker, that concludes:

I believe that we should grant transfer in this case to determine whether claims under the Wage Payment Statute may be assigned to the DOL, in part because it does not appear that the DOL itself is clear on this question. The DOL did not indicate in any of the materials that it sent to either Quimby or Becovic that it was the assignee of Quimby’s claim. Rather, it referred to its services as “mediation” and even suggested that Quimby file the very lawsuit giving rise to this appeal. Neither the instructions attached to the DOL’s electronic “Application For Wage Claim” nor the frequently asked questions on the DOL’s website acknowledge that it is taking these claims by assignment. See Wage Claim Instructions & Application (2009), available at http://www.in.gov/dol/files/WageClaimInstructionsApp092407Corrected.pdf (last visited Feb. 9, 2012) (stating the DOL “accepts Wage Claims as a service to resolve wage disputes”); DOL: Wage & Hour FAQs, http://www.in.gov/dol/2345.htm#104 (last visited Feb. 9, 2012) (noting that current employees or those who have voluntarily separated may either file a wage claim or file a lawsuit). And, the language on its form states that the claim is being assigned for “processing in accordance with the provisions of [the Wage Claims Statute],” so it might very well be that the DOL only intends to take by assignment claims under that statute.

There are likely many other claimants in Quimby’s position – claimants that do not have to but nevertheless seek the DOL’s assistance with their wage disputes. Because the Court has decided not to grant transfer, I urge the DOL to examine this question and if it agrees with the Court of Appeals that in such circumstances it takes these claims by assignment, to revise its documents to make that clear to both the employee and employer, or if it concludes contrary to the decision of the Court of Appeals that it does not take these claims by assignment, to revise its form to remove this language.

Posted by Marcia Oddi on February 14, 2012 10:27 AM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists