Divided COA allows suit after wage claim fails at Department of Labor

A worker who left employment at a Columbus construction company may pursue his wage claim in court after his complaint had been assigned to the Indiana Department of Labor, a divided panel of the Indiana Court of Appeals ruled.

A Bartholomew Superior Court ruling dismissed with prejudice John Fox v. Nichter Construction Co., Inc., 03A01-1202-SC-52, on the basis that the court lacked jurisdiction because Fox had assigned his claim to the DOL in 2010. The agency has changed procedures and as of this year no longer requires that wage complaints be assigned to the department, the court noted.

The trial court denied Fox’s motion to correct error when he received a referral letter from the DOL. In its nonbinding administrative review, the DOL had found he was “ineligible to receive vacation payout,” but the letter said he could file suit.

“We reverse the trial court’s order and remand this matter to the trial court with instructions to enter an order that Fox’s claim is dismissed without prejudice under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest,” Judge Kirsch wrote in an opinion joined by Judge Edward Najam.

“Thus, Fox may proceed to refile his claim setting forth the reassignment by the DOL.”

Judge Melissa May dissented and would affirm the trial court.  

“Fox chose to pursue his wage claim through the Wage Claim statute, and not the Wage Payment statute. That choice had the effect of precluding any future judicial action because he assigned his claim to the DOL and sought a resolution through the DOL,” May wrote.

The DOL no longer requiring assignment of claims is “a helpful step toward clarifying the procedures by which a voluntarily-separated employee may pursue wage claims,” she wrote, but said Quimby v. Becovic Mgmt Group, Inc., 946 N.E.2d 30, 33-34 (Ind. Ct. App. 2011) controls the Fox case.

“Both Fox and Quimby were voluntarily-separated employees who chose to pursue their claims through the DOL, and the DOL obtained a resolution in both instances. In light of the DOL’s policies and procedures in place at the time of their claims, both parties were, therefore, precluded from a second bite at the proverbial apple,” she wrote.