House Dems Could Double Their Money From Walkout

This is not legal advice, and I’m not saying I have done any thorough research on this issue. That said, I can see a plausible route whereby the $1,000 per day imposed on the Indiana House Democrats could lead to them netting $2,000 per day (plus attorneys fees). This only works if the State withholds the money from their paychecks. If the Dems get paid in full, then the State or House sues the representatives for the fine amount, they’re probably S.O.L. But, if the fine is simply withheld from their paycheck, consider IC 22-2-5.

In particular, consider section 2 of that chapter which provides:

Sec. 2. Every such person, firm, corporation, limited liability company, or association who shall fail to make payment of wages to any such employee as provided in section 1 of this chapter shall, as liquidated damages for such failure, pay to such employee for each day that the amount due to him remains unpaid ten percent (10%) of the amount due to him in addition thereto, not exceeding double the amount of wages due, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages or the liquidated damages for nonpayment thereof, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff’s attorney or attorneys.

(emphasis added). Section 1 tells the time frames for paying an employee. If you’re short, you not only have to pay the shortfall, but you also get tagged 10% per day as a penalty, up to 200%. So, if the fines are withheld and not reimbursed for 20 days, then the penalty on the improper $1,000 withholding would be an additional $2,000.

I’m going to presume that the penalties are valid. (Article 4, section 11 provides that “Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members.” Presumably, if the present House members were really serious, they could just have the absent members arrested and dragged bodily into the House chambers. The PR fallout of that could be interesting.) Anyway, assuming the penalties are valid, IC 22-2-8-1 declares that “it is unlawful for any employer to assess a fine on any pretext against any employee and retain the same or any part thereof from his wages.”

There are some questions. For example, are the House Democrats “employees” within the meaning of the statute? On the one hand, it’s not the traditional employer/employee relationship. On the other hand, one of the big distinctions between an employee and independent contractor is that the latter is not generally answerable as to the method and details of performing his task, but rather is answerable only as to the results of that task. Here, the quality of the legislators performance is a matter of supreme indifference to those imposing the fine. The skill with which they communicate the concerns of their constituents or the quality of the legislation they introduce is of absolutely no importance in this dispute. Rather, the only concern is their physical presence at the time and place dictated by those imposing the fine. From that perspective, anyway, they look more like employees than independent contractors.

If I were advising an employer, I’d advise him or her to err on the side of caution with something like this. Make the payment, then go and collect the fine independently. Better that than costing the taxpayers of Indiana something like $70,000 per day through improper withholdings.