Employee Angered by Average Weekly Wage

The employee in this case (Barbier) was hurt on the job and did not agree with how her average weekly wage (AWW) was calculated. A sales representative with Kraft Foods, Barbier argued she was paid hourly and should have been paid overtime under the Fair Labor Standards Act, but Kraft said she was really paid a salary with bonuses whenever she worked over forty hours a week. Barbier filed a Form 1008/Disputed Claim for Compensation in the Fourth District of the Office of Workers Compensation located in Lafayette arguing that her average weekly wage was calculated wrong based on her overtime argument. In an interesting argument, Barbier pointed out that a non-monetary taxable prize she received valued at $550.50 should have been factored into her AWW. She also went after attorney’s fees.

Kraft disagreed about the Barbier’s status as a salaried worker and argued the hours that Barbier thought were overtime were really bonuses which are treated as “other wages” for purposes of calculating AWW pursuant to La.R.S. 23:1021(13)(d). Kraft introduced evidence of its “salary plus program” which was basically a bonus system that took into account a person’s hours over forty per week. The judge must look at the particular facts and circumstances of the case to determine whether she was in fact an hourly or salary based employee. It also argued that Barbier didn’t put on the right kind of evidence to show the value of the prize should have been included in her AWW.

Judge Adam Johnson ruled in the trial court that Barbier was a salaried employee who was paid bonuses and that the correct corresponding calculation of her average weekly wage was $911.55. He also awarded $10,000.00 in attorney fees. The Third Circuit Court of Appeal upheld Judge Adam Johnson’s ruling.

So why all of the fuss? An injured worker is entitled to receive two-thirds of the average wages he or she made in the four weeks before he or she was hurt. If Barbier were able to show she should have been paid overtime during that period her workers’ compensation checks would have gone up and Kraft would owe her the difference of what she had been paid for workers’ compensation and what she should have been paid. The same thing is true for the prize – if the prize had been factored in her weekly workers’ comp checks would have gone up about $91 per week.
Barbier v. Kraft Foods, 14–872(La.App. 3 Cir. 2/4/15), 158 So.3d 239

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