Kentucky: Waitress was Variable Wage Employee in Spite of Unreported Income Issue

The Supreme Court of Kentucky held that while KRS 342.140(6) excludes unreported income from a workers’ average weekly wage calculation, it does not change the nature of the worker’s pay or the method to be used for calculating the AWW based upon the nature of the worker’s pay. Accordingly, where a waitress was paid $100 per week—plus tips—and her employer did not include any of those tips on her W–2 form at the end of the year, those facts did not convert the waitress to an employee earning a fixed weekly wage. While unreported income could not be utilized in computing the worker’s AWW, the ALJ correctly utilized the worker’s wage data from the most advantageous quarter of the 52-week period preceding her injury, pursuant to KRS 342.140(1)(d).

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis

See Commonwealth v. Sidebottom, 2017 Ky. LEXIS 2 (Feb. 16, 2017)

See generally Larson’s Workers’ Compensation Law, § 93.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law