There are several reasons why employers ban employees from holding second jobs. Some do it because the second job robs the employee of rest and vitality and creates potential scheduling conflicts. Others do it because the employee may decide to take FMLA from their "hard" job while continuing to work their "easy" job. Others do it to discourage union activities or "salters" from taking a job in order to organize their co-workers. However, a significant reason to prohibit employees from taking a second job is that the employer could become liable for paying the wages for that second job if the employee gets injured at your workplace and is unable to work either job. This is not a new concept, but it is a rule that the Ohio Supreme Court confirmed this week. State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., Slip Opinion No. 2010-Ohio- 2451. In that decision, the Court found that the Industrial Commission did not err in including the claimant's wages from his second job in his average weekly wage for purposes of his temporary total disability claim.
According to the Court decision, the claimant "began working part-time for appellant FedEx Ground Package System, Inc., in 2004. [He] generally made between $190 and $250 per week. In April 2006, [he] took a second job with Integrated Pest Control that paid considerably more than the job at FedEx. [He] was also operating a side business, Affordable Animal Removal, concurrently with the other two jobs." After he was injured at work, FedEx, a self-insured employer, set his average weekly wage and full weekly wage based solely on the wages he earned at FedEx. The Claimant appealed on the grounds that his wages from his second, higher-paying job also should have been considered. The district hearing officer agreed that special circumstances applied based on Ohio Revised Code § 4123.61, which provides in relevant part that:
The average weekly wage of an injured employee at the time of the injury or at the time disability due to the occupational disease begins is the basis upon which to compute benefits.
In cases of temporary total disability the compensation for the first twelve weeks for which compensation is payable shall be based on the full weekly wage of the claimant at the time of the injury or at the time of the disability due to occupational disease begins; when a factory, mine, or other place of employment is working short time in order to divide work among the employees, the bureau of workers' compensation shall take that fact into consideration when determining the wage for the first twelve weeks of temporary total disability.
Compensation for all further temporary total disability shall be based as provided for permanent disability claims.
. . . . .
In cases where there are special circumstances under which the average weekly wage cannot justly be determined by applying this section, the administrator of workers' compensation, in determining the average weekly wage in such cases, shall use such method as will enable the administrator to do substantial justice to the claimants, provided that the administrator shall not recalculate the claimant's average weekly wage for awards for permanent total disability solely for the reason that the claimant continued working and the claimant's wages increased following the injury.
The decision was affirmed on appeal and the employer filed suit. The Industrial Commission argued that the regular AWW benefit included wages from a second job even without special circumstances. In addition to the unfairness, FedEx argued "that inclusion of wages from other, concurrent employment discourages claimants from continuing to work at the second job if they are medically able." The Court disagreed.
"R.C. 4123.61 refers to wages earned in the year prior to injury without qualification or exclusion." Indeed, R.C. 4123.61 . . . specifically states that the AWW includes wages for the year preceding injury without qualification or exclusion." Moreover, the Court did not believe that it was unfair because "if a claimant is so severely hurt at one job as to disable him or her from both, it is not unfair to compensate the individual for that cumulative loss. Second, the inclusion of two sets of wages was not considered unfair by the General Assembly when it promulgated R.C. 4123.61." Finally, the Court found the Industrial Commission's calculation of benefits to be within its expertise and discretion.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
