R.L. Turner Corp. v. Wressell

44 N.E.3d 26

R.L. TURNER CORPORATION, Appellant–Defendant

v.William WRESSELL, Appellee–Plaintiff.

No. 06A05–1411–PL–540.

Court of Appeals of Indiana.

Sept. 16, 2015.

Michael L. Einterz, Jr., Einterz & Einterz, Zionsville, IN, Attorney for Appellant.

Robert S. Rifkin, Maurer Rifkin, P.C., Carmel, IN, Attorney for Appellee.

BRADFORD, Judge.

Case Summary

[1] Appellee–Plaintiff William Wressell brought a claim against his employer Appellant–Defendant R.L. Turner Corporation (“RLTC”) alleging that he did not receive wages he was entitled to under the Indiana Common Construction Wage Act (“CCWA”). The trial court found that RLTC provided insufficient fringe benefits to meet the minimum wage requirements of the CCWA and awarded Wressell compensatory damages for the unpaid fringe benefits as well as statutory treble damages. The trial court also awarded attorney's fees to Wressell pursuant to the fee shifting provision of the Indiana Wage Payment Statute.

[2] On appeal, RLTC raises several issues which we consolidate and restate as follows: (1) whether the CCWA can form the basis for a private cause of action; (2) whether the trial court erred in finding that RLTC provided insufficient fringe benefits to meet the minimum requirements of the CCWA; and (3) whether the trial court erred in awarding attorney's fees to Wressell. Wressell argues on appeal that the trial court erred in failing to consider his overtime hours in calculating the amount of wages he was entitled to. We affirm the judgment of the trial court; however, we remand with instructions that the trial court award Wressell additional damages for overtime compensation.

Facts and Procedural History

[3] Wressell filed a claim against RLTC on January 5, 2012 for unpaid wages. (App. 20–23) In December of 2012, the trial court granted a motion for summary judgment in favor of RLTC. That decision was reversed by this court on appeal in Wressell v. R.L. Turner Corporation, 988 N.E.2d 289 (Ind.Ct.App.2013), trans. denied. We have previously outlined the facts of this case, the relevant portions of which are as follows:

Between September 15, 2009, and June 20, 2010, RLTC employed Wressell as a skilled cement mason. Wressell worked on two projects for RLTC, the Gatewood wing of the Mechanical Engineering Building at Purdue University (“the Gatewood Project”) and the Informatics and Classroom Addition at Indiana University (“the Informatics Project”).

Wressell worked 677 hours on the Gatewood Project, a project whose common construction wage scale provided that a skilled cement mason was to be paid an hourly wage of $24.25 and fringe benefits of $10.68 per hour. All told, a skilled cement mason would have been entitled to be paid a total of $23,647.61 for working 677 hours on the Gatewood project....

Wressell worked 452.5 hours on the Informatics Project, a project whose common construction wage scale provides that a skilled cement mason was to be paid an hourly wage of $21.75 and fringe benefits of $8.52 per hour. All told, a skilled cement mason would have been entitled to be paid a total of $13,697.18 for working 452.5 hours on the Informatics Project....

RLTC made several other payments on Wressell's behalf that it credited against its fringe benefit obligations to him. Specifically, RLTC paid (1) $268.80 to a benefit consultant to provide employees with claims assistance, if needed; (2) $128.70 to a pension plan; (3) a $1397.00 assessment charged to Wressell to recover a portion of fringe benefits paid by RLTC on his behalf; (4) $245.25 for mandatory first aid and CPR training; (5) $225.00 for materials used in training; (6) $1352.00 paid to reimburse Wressell for gasoline used in driving to and from the Projects; and (7) a $1260 assessment charged to Wressell to pay RLTC to administer his benefits.

On or about October 10, 2010, Wressell filed common construction wage complaints with the Indiana Department of Labor (“IDOL”), claiming that RLTC “switched pay rate in middle of job [and/or] never agreed upon rate” for the Gatewood and Informatics Projects. Appellant's App. pp. 31, 33. Although the IDOL opened investigations into Wressell's complaints, it did not resolve them, “primarily because [RLTC] either failed or refused to cooperate in the investigations and refused to produce the records necessary for [IDOL] to determine whether [RLTC] paid wages in accordance with the [CCWA].” Appellant's App. p. 35. On December 29, 2011, the Indiana Attorney General's office authorized Wressell to pursue his claims in court. On January 5, 2012, Wressell sued RLTC, contending that he had been underpaid for his work on the Gatewood and Informatics Projects.

On June 29, 2012, RLTC filed a motion for summary judgment, alleging that there existed no genuine issue of material fact regarding whether Wressell had been paid the wages and fringe benefits to which he was entitled. Inter alia, RLTC designated an affidavit from its Chief Financial Officer (“CFO”) James Gann, in which he averred that the wages and fringe benefits paid to Wressell for his work on the Gatewood and Informatics Projects were in compliance with the common construction wage scale in place for each project.

On August 27, 2012, Wressell filed a response to RLTC's summary judgment motion and cross-moved for summary judgment. The basis of Wressell's motion was his contention that much of the work he performed on the Gatewood and Informatics Projects was actually as a carpenter or laborer, work for which, overall, he was entitled to be paid more. Wressell also contended that many of RLTC's payments credited against its fringe benefit obligation to him were, in fact, not for fringe benefits.

* * *

Wressell also averred to the following

15. The distance between [RLTC]'s Zionsville office and the Gatewood [Project] is in excess of 50 miles (100 miles round trip). The distance between [RLTC]'s Zionsville office and the [Informatics Project] is in excess of 70 miles (140 miles round trip).

16. When I worked at the Gatewood and Informatics Projects, I was paid an average of $2.66 per gallon to fuel my pick-up truck, and it cost me in excess of $17.00 a day in gas to drive to and from the Gatewood Project ... and in excess of $24.00 per day to drive to and from the Informatics Project[.].

17. [RLTC] paid me $2.00 per hour to apply to the cost of gas for my truck for each hour I worked at the Gatewood Project ...; accordingly, if I worked 8 hours ... I was given $16.00 to cover gas. If I worked less than 8 hours, the amount I was given for gas was reduced accordingly. [RLTC] gave me no money for gas to drive the 140 miles to and from Bloomington, Indiana for the days I worked on the Informatics Project.

18. I was not required by [RLTC] to document the miles I drove each day to the common construction wage worksites and [RLTC] did not treat the gas payments to me as taxable fringe benefits or report the gas payments as income to the IRS. [RLTC] did not provide transportation for me to and from its out-of-town worksites.

19. I spent more than the $1,352.00 [RLTC] gave me in gas money to drive to [RLTC]'s work sites in Lafayette, Indiana and Bloomington, Indiana.

20. [RLTC] did not provide me with a pension or pension benefit, and [RLTC] did not contribute any money to a pension for me.

Appellant's App. pp. 205–06.

* * *

Wressell also designated an affidavit from Monte Moorhead.... Regarding fringe benefits, Moorhead averred the following:

12. Employer expenses that are a part of its regular administrative overhead costs of doing business, or that are primarily for the benefit of the employer, are not treated by the IDOL as employee fringe benefits. Expenses that are paid by a company to operate its business and to achieve increases in productivity and profit are not considered fringe benefits where the expenses are not a direct cash payment or other direct benefit to the employee; consequently, even if an employee gets an incidental benefit, the cost is not treated as a fringe benefit.

13. When an employee is required to undergo employer mandated training, and the training is given at the discretion and the control of the employer, the IDOL would not allow the employer to claim a fringe benefit allocation or credit for the training, nor is the employer entitled to claim as a fringe benefit the cost it pays to provide books or materials to its employees for the training.

14. As an example, if a company requires an employee to take first aid or CPR training, its cost for providing such training would not be considered by the IDOL as a fringe benefit to the employee because the training was required by the Company and the employee was under the direction and control of the employer.

15. If the employer has a pension plan, but an employee does not participate in the plan, and the employer does not make any contributions on the employee's behalf, then the employer's expenses for the pension plan are not credited by the IDOL as a fringe benefit to the employee.

16. If an employer pays the cost of providing a benefit plan, but an employee chooses not to elect to participate in the plan, the IDOL would not allow the employer to claim a fringe benefit credit for its expenses.

17. The IDOL does not consider an employer's administrative costs to provide benefits to employees as a fringe benefit. It makes no difference whether the employer pays a third party to administer the benefits or administers the benefits in-house.

18. If employees are given a fixed dollar amount per hour to reimburse them for having to spend their own money on gas to drive to and from a company's principal office to remote construction sites, and the money paid is not reported by the employer to the IRS as income to the employee, then the IDOL does not consider the money paid to the employee to be a fringe benefit.

Appellant's App. pp. 211–12.

Wressell, 988 N.E.2d at 292–96 (footnotes omitted).¹

[4] The trial court granted RLTC's June 29, 2012 motion for summary judgment. On appeal, we...