Donovan v. Schlesner
| Citation | 72 Wis.2d 74,240 N.W.2d 135 |
| Decision Date | 07 April 1976 |
| Docket Number | No. 563,563 |
| Court | Wisconsin Supreme Court |
| Parties | , 22 Wage & Hour Cas. (BNA) 964, 81 Lab.Cas. P 55,028 Terry DONOVAN, by his statutory trustee, state of Wisconsin Department of Industry, Labor & Human Relations, Appellant, v. Larry SCHLESNER, d/b/a Clark Gas, Respondent. (1974). |
Robert W. Warren, Atty. Gen., and Charles D. Hoornstra, Asst. Atty. Gen., for appellant.
No brief filed for respondent.
The defendant-respondent, Larry Schlesner, doing business as Clark Gas, has not filed a brief or otherwise appeared in this appeal. The judgment could be reversed as a matter of course under the Supreme Court Rule, sec. 251.57, Stats. However, because the case is to be remanded for further proceedings, we deem it advisable to set forth our opinion.
The sole issue presented is whether sec. 103.455, Stats., was complied with in making deductions from the weekly wages of the plaintiff.
On or about June 8, 1972, the plaintiff, Terry Donovan, then seventeen years old, applied for a job as an attendant at a gas station in Watertown. The station was operated by the defendant, Larry Schlesner. Donovan completed a job application form and was told by Schlesner that he had the job and could start the next day. There was no written contract of employment.
Donovan's duties at the station included pumping gas, keeping the station clean, washing windows, and taking care of customers. In addition, Donovan was required to keep the books to reflect the sale of such items as gas, milk and candy during his working shift. His compensation was increased as he learned how to keep the books. At the time his employment was terminated on September 25, 1972, Donovan was earning $1.85 per hour. Payment was by check each Friday for the work done that week.
When Donovan first started work he was told by Schlesner that deductions would be made from the week's pay for shortages appearing from the books. Shortages were determined by comparing the property or items on hand with the amounts entered into the books representing sales. The deductions were noted on the check stubs given to the employee with the paycheck. Donovan's check stubs revealed that a total of $116.60 was deducted from his weekly checks in amounts ranging from $2 to $24.65 during the period he worked for Schlesner.
Donovan stated that he did not object to the deductions when made because he needed the money from the job. He did, however, understand why they were being made. Donovan did not specifically agree to each deduction and did not feel responsible for the shortages reflected by them.
A rubber stamp impression on the back of his job application provided:
'I will be responsible for all shortages shown on shift sheet.
'Date 6/6--72, Time 5:00
'Name Terry Donovan'
Donovan stated that the stamp was not on the application form it the time he applied for the job. He testified he signed this provision about three weeks before his employment was terminated and that he had not authorized each deduction in writing.
Donovan worked through September 25, 1972. He was fired the next day for failing to do the books the night before. He stated he did not do the books because he was angry after Schlesner asked him when he would learn to do them properly. Schlesner never accused Donovan of dishonesty or theft and Donovan stated he never took anything without paying for it.
After he was fired, Donovan did not talk to Schlesner about the deductions. He did go to the unemployment office where he was told to write a letter to the Department of Industry, Labor & Human Relations setting forth the facts concerning the deductions. The department sent a form for Donovan to complete and commenced this action on his behalf.
Following the presentations of the plaintiff's evidence, counsel for the defendant moved for dismissal on the ground that Donovan had acquiesced in the deductions by failing to object thereto. The county court, in a decision from the bench, granted the motion on the ground that the plaintiff 'knew each week what was being taken out, why it was being taken out, what they were for, and he never said one word, even at the end when he left, he never said one word.' The plaintiff appealed the order dismissing the action to the circuit court. That court wrote a memorandum decision and issued a judgment affirming the county court's order. The State of Wisconsin, Department of Industry, Labor & Human Relations brings this appeal as Donovan's statutory trustee pursuant to secs. 101.21 and 101.02(5)(f), Stats.
Sec. 103.455, Stats., provides:
The department contends that this section requires that a determination of employee fault must precede each deduction for loss by the employer. This determination, the department asserts, may be made in one of three ways under the statute: (1) A written employee admission of the fault; (2) an agreement by the employee's representative that the employee was at fault; or (3) a court determination of fault. Unless such a determination precedes each deduction, the department argues, that deduction is unlawful and the employer is liable for the penalty imposed by the statute.
Primary reliance is placed upon Zarnott v. Timken-Detroit Axle Co. (1944), 244 Wis. 596, 13 N.W.2d 53. That case involved a complaint by the plaintiff, in his own behalf and on behalf of other employees similarly situated, against the employer to recover payroll deductions made in violation of sec. 103.455, Stats. The plaintiffs were machine operators paid on a piecework basis with a guaranteed minimum hourly rate. Each day they were given a job card which showed the part to be manufactured, the machine to be used, the piece rate and a description of the operation. At the end of the day the employee turned in his card and finished pieces. The pieces were inspected and, if any were rejected as defective, the foreman determined whether the defect was due to the carelessness of the employee. Deductions were made from each employee's paycheck for the defective pieces attributed to his carelessness.
The employer, on appeal from a judgment for the plaintiffs, argued that no compensation was due to an employee for defective pieces caused by his negligence and that, as a result, no wages were 'due or earned' within the meaning of sec. 103.455, Stats. In response to that argument, this court stated at pp. 600, 601, 13 N.W.2d at p. 54:
'Respondents seek to recover for deductions made from their wages for faulty and defective work without a mutual determination that the defective pieces were the result of the employees' carelessness, negligence, or willful misconduct, as required by statute. The purpose of this statute was to require the employer to give tne employee an opportunity to protect his rights on the question of whether defective parts were due to his negligence. The earnings of the employee depend upon his services...
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Erdman v. Jovoco, Inc., 92-0980
...employer that compensation is not due the employe by reason of losses attributed to [the employe's] negligence." Donovan v. Schlesner, 72 Wis.2d 74, 81, 240 N.W.2d 135 (1976). See also Wandry, 129 Wis.2d at 44, 384 N.W.2d The legislative history and case law surrounding sec. 103.455 make it......
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...an employer upon an employee to bear the burden of a work-related loss." Wandry, 129 Wis. 2d at 47. Wandry quotes Donovan v. Schlesner, 72 Wis. 2d 74, 82, 240 N.W.2d 135 (1976), in explanation of the policy: "The entire purpose of the statute is to preclude any deduction for losses until th......
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...routine maintenance and acting as a rental agent does not involve manufacturing or production. Kuebli contends Donovan v. Schlesner, 72 Wis.2d 74, 240 N.W.2d 135 (1976) permits application of sec. 103.455, Stats., to employes not engaged in manufacturing or production. In Donovan, a gas sta......
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...182, 187 (Ct. App. 1984). We first consider the object sought to be accomplished by sec. 103.455, Stats. In Donovan v. Schlesner, 72 Wis.2d 74, 82, 240 N.W.2d 135, 139 (1976), the court summarized the purpose of the statute as The entire purpose of the statute is to preclude any deduction f......