Kira Reaver v. Degas House, L.L.C.

Opinion

KIRA REAVER * NO. 2022-CA-0464

VERSUS * COURT OF APPEAL

DEGAS HOUSE, L.L.C. * FOURTH CIRCUIT

* STATE OF LOUISIANA

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NEK ERVIN-KNOTT, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS

Although I concur with the majority’s affirmation of the trial court’s

evidentiary ruling and judgment on overtime compensation, I write separately to

dissent on the finding regarding penalty wages.

A trial court’s determination of whether an employer is arbitrary or in bad

faith is a question of fact subject to the manifest error standard of review. Steak v.

Hat World, Inc., 2015-1108, p. 7 (La. App. 4 Cir. 5/04/16), 191 So. 3d 712, 716. In

order to reverse the trial court’s determination, this Court must find that a

reasonable factual basis for the trial court’s finding does not exist from the record

and that the finding is clearly wrong. Hamilton v. Burns, 2016-0107, p. 4 (La. App.

4 Cir. 9/28/16), 202 So. 3d 1177, 1181.

A review of the record shows Degas House, LLC was not in good faith. The

record shows there was clearly a dispute between the parties regarding the amount

of unpaid commission owed to Ms. Reaver. La. R.S. 23:631(B) mandates, “In the

event of a dispute as to the amount due under this Section, the employer shall pay

the undisputed portion of the amount due . . . .” Degas did not dispute that Ms.

Reaver was owed commission on certain events. However, the record shows that

Degas did not pay any portion of that commission to Ms. Reaver. Although Mr. Villarrubia testified at trial that he included Ms. Reaver’s commissions in her last

pay check, he did not know how much of that check was for commissions, nor did

he have any documents to corroborate his testimony that she had been paid those

commissions. The trial court noted that there was no record of Ms. Reaver being

paid any commission. An employer who negligently fails to pay wages owed is not

in good faith. See Steak, 2015-1108, p. 6, 191 So. 3d at 716. Therefore, the trial

court’s finding that Degas was in good faith is not supported by the evidence in the

record, and the trial court erred by not awarding penalty wages as required by

statute.

For this reason, I respectfully dissent from the majority’s finding on penalty

wages and would reverse the judgment to include penalty wages under La. R.S.

23:632(A).