Indiana Supreme Court Allows Day Laborer’s Claim to Proceed Under Indiana Wage Payment Act

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

If it walks like a duck, swims like a duck, and quacks like a duck—then you’d better have a pretty good argument if you don’t want the Indiana Supreme Court to call it a “duck.”

The Indiana Supreme Court recently applied the so-called “Duck Test” to clarify what it means for an employee to be separated from the payroll for purposes of Indiana’s Wage Claims Act. Walczak v. Labor Works – Fort Wayne LLC, No. 02S04-1208-PL-497 (March 13, 2013). The decision is important because the Wage Claims Act requires individuals to meet certain administrative prerequisites before filing a lawsuit. In contrast, the Indiana Wage Payment Act does not have the same administrative requirements.

In Indiana, the above two statutes can potentially provide relief for employees who believe they have not been paid their full wages. If the employee is a current employee, or someone who “voluntarily” left his or her employment, then the Wage Payment Act applies. However, if the employee was “separate[d] from the pay-roll,” the employee must proceed under Indiana’s Wage Claims Act, which requires the employee to first file a claim with the Indiana Department of Labor. Under that statute, the employee must obtain an assignment from the Department of Labor before moving forward with a lawsuit. Before March 13, 2013, neither the Indiana legislature nor the Indiana courts had expressly defined the phrase “separate[d] from the pay-roll.”

In Walczak, the state supreme court rejected Labor Works’ argument that a day laborer was separated from the payroll at the end of each day. The court unanimously held that the laborer, Ms. Walczak, could pursue a claim that she filed in court under the Wage Payment Act because she had an immediate expectation of future employment with Labor Works on the day she filed her lawsuit.

According to the court, Ms. Walczak accepted periodic job assignments with Labor Works from December 20, 2009 through early March 2010. She received job assignments on a day-to-day basis by coming into the office and signing up for work. She was not required to report to work on any regular schedule, and assignments were not guaranteed. If there was not enough available work, Ms. Walczak might not have received an assignment even if she signed up for work that day. At the end of each day’s work, Labor Works provided Ms. Walczak her wages for the day. Ms. Walczak filed suit on February 1, 2010, a date that she neither sought nor obtained a work assignment. However, she had worked on January 28, signed up for but did not receive a job assignment on January 29, and signed up for and did receive a job assignment on February 2.

The supreme court first determined that the trial court had jurisdiction to hear Ms. Walczak’s claim. In so doing, it rejected an argument by Labor Works that the Indiana Department of Labor held sole jurisdiction to hear the matter since there was a dispute as to whether Ms. Walczak voluntarily left employment, or was separated from the payroll at the end of each day. The supreme court held that, in this context, the question of whether an agency has jurisdiction over a matter is a question of law for the courts, not the agency itself. According to the supreme court, if the Indiana Department of Labor is required to resolve disputes as to whether the Wage Payment Act or the Wage Claims Act applies before an employee can proceed to court, then the Wage Payment Act would effectively have its own administrative exhaustion requirement—a requirement that was never intended by the Indiana legislature.

The court then went on to clarify that the statutory phrase, “separate[d] from the pay-roll,” should be given a commonsense meaning. Citing to the Duck Test—whose origination is widely credited to Indiana poet James Whitcomb Riley (1849-1916)—the court decided that the language used in the employer’s paperwork and the facts related to Ms. Walczak’s employment history with Labor Works demonstrated that she had not been separated from the payroll when she filed her lawsuit on February 1, 2010. In reaching this conclusion, the court noted that other federal and state courts have frequently assumed—without deciding—that this phrase means the person was “fired.” The state high court in Walczak agreed with the reasoning of these courts. It noted that an employee who does not leave a job on her own terms may be motivated by animus, and the administrative exhaustion requirement under the Wage Claims Act was intended to help protect the employer against animus-based claims by creating a barrier to going to court. On the other hand, current employees and employees who leave on their own terms are less likely to have animus towards the employer, so the employer does not need that same level of protection. The Court thus held that a day laborer is not “separate[d] from the pay-roll” unless the employee has no immediate expectation of possible future employment with the same employer.

Although the Walczak case specifically involved a day laborer, it should provide a valuable reminder to all Indiana employers of the importance of documenting the specific facts surrounding the termination of an individual’s employment, including whether the termination was solely the choice of the employee, as well as the exact date of the termination.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.