Court of Appeals Reverses Commissioner, Agrees with District Court that Weeks in Which Claimant was Off for Personal Reasons Were Not to Be Included in Rate Calculation

 Hermanstorfer v. Lennox Industries, Inc., No. 24-0652 (Iowa App. Dec. 4, 2024)

In this case involving only the issue of rate, the commissioner concluded that claimant's time off for a personal health condition was to be included in the claimant's rate.  The deputy had concluded that claimant's frequent taking of FMLA leave established a "pattern" of reduced hours.  Claimant argued that these weeks should have been excluded but the deputy and commissioner rejected this argument.  The district court reversed, finding that the inclusion of weeks in which claimant took FMLA leave was "illogical, irrational and wholly unjustified."

The Court of Appeals notes that weekly earnings are defined by 85.36 as those the employee would have worked had he or she "worked the customary hours for a full time period." The Court noted that the statute was to be interpreted liberally in favor of the employee. Under a plain reading of 85.36, according to the Court, "the legislature has determined absences of a personal nature are not to diminish an employee's customary earnings; instead, the employee is to be reimbursed in 'the amount the employee would have earned had the employee worked when work was available to other employees of the employer in a similar occupation.'" Citing Mercy Med. Ctr. v. Healy, 801 NW2d 865, 872 (Iowa App. 2011).  Claimant had testified that she generally worked nearly sixty hours a week, but the commissioner concluded all weeks of 32 or more hours should be counted.  This decision, according to the Court, penalized claimant for taking personal leave and directly contravened the intent of the legislature.  The Court affirmed the decision of the district court which had affirmed the higher rate and included only those weeks where personal leave was not taken.


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