CARRIE LYNN M. HIBBARD, Complainant
KELLY PHOTO SERVICE, INC., Respondent
An examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on March 5, 1985. Respondent filed a timely petition for review of the examiner's decision by the Commission and both parties subsequently submitted written arguments.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
The attached decision of the examiner is affirmed subject to the following modifications:
1. Finding of Fact #10 is deleted and the following paragraph substituted therefor:
"10. When Schmitz chose to do a wedding he was given the option of receiving his hourly wage or a flat fee, but when Complainant did wedding8 she had no option except to accept a flat fee. This resulted in Complainant earning less than Schmitz for weddings. Kiefer received a $15 fee plus his hourly wage during the period Complainant trained him to do weddings. This resulted in his receiving close to the same amount as Complainant for the weddings; and on more than one occasion, it resulted in his receiving more for the wedding than Complainant, even though she was in fact training him."
2. The last sentence of paragraph 2 of the Order is deleted and the following sentence substituted therefor:
"This amount is to be increased by interest at the annual rate of 12% simply interest.(1) Interest shall be computed on a calendar quarter basis."
3. Paragraph 5 of the examiner's order is deleted and the following paragraph substituted therefor:
"5. Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. 0. Box 8126, Madison, Wisconsin 53708."
As modified, the examiner's decision shall stand as the FINAL ORDER herein.
Dated and mailed September 30, 1985
/s/ David A. Pearson, Chairman
/s/ Hugh C. Henderson, Commissioner
/s/ Carl W. Thompson, Commissioner
In the petition, Respondent has alleged that the difference between what Complainant was paid and what the male photographers were paid could be explained by the superior education, training and abilities of the male photographers. The examiner's findings and the record in this case illustrate that there were no significant differences in the education, training or abilities of Complainant and Mr. Schmitz or Mr. Kiefer. Mr. Van Straten did have a degree in photography from a technical institute, but this alone could not explain the large difference in wage rates between him and Complainant. Furthermore, the wage differential was calculated against the wage earned by Mr. Schmitz.
Respondent further contends that the attorney fees were excessive, and that they should be reduced because they exceed the award made in the case, and because Respondent's studio operations have been forced out of business due to economic conditions. Given the complex factual circumstances of this case, it is clear that Complainant's attorney was required to expend a large amount of time in preparation and briefing, and at the hearings held in the matter. The Commission has reviewed Complainant's attorney's statement of services and costs, and has concluded that they are all legitimate. There is no authority or persuasive reason to limit the recovery of attorney fees and costs to the amount of the award, nor to reduce the fees and costs due to financial difficulties encountered by a respondent.
Finally, Respondent asserts that the examiner calculated the wage differential erroneously, and that interest on the award should not have been allowed. However, Respondent offered no alternative calculations to Complainant's summary of the wage difference (Exhibit 10), and interest on awards was authorized in Anderson v. LIRC, 111 Wis. 2d 245 (1983).
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(1)( Back ) The Commission has changed the rate of interest to 12% simple interest to reflect a change in the department's rules effective June 1, 1985.