Citations Affected: IC 6-4.1; IC 22-2; noncode.
Synopsis: Economic matters. Increases the inheritance tax exemption
for Class A transferees from $100,000 to $200,000. Increases Indiana's
minimum hourly wage to $6 on September 1, 2007, $6.75 on March 1,
2008, and $7.50 on September 1, 2008. Increases from $800 to $6,000
the amount of the maximum wage claim for which the commissioner
of the department of labor may take an assignment. Removes the
exemption from Indiana's minimum wage law for employers that are
subject to the minimum wage provisions of the federal Fair Labor
Effective: July 1, 2007.
January 8, 2007, read first time and referred to Committee on Labor and Employment.
January 23, 2007, amended, reported _ Do Pass. Recommitted to Committee on Ways & Means.
January 25, 2007, minority report failed. Yeas 48, nays 51.
January 25, 2007, amended, reported _ Do Pass.
January 29, 2007, read second time, amended, ordered engrossed.
A BILL FOR AN ACT to amend the Indiana Code concerning
of the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C.
"Employee" means any person employed or permitted to work or perform any service for remuneration or under any contract of hire, written or oral, express or implied by an employer in any occupation, but shall not include any of the following:
(a) Persons less than sixteen (16) years of age.
(b) Persons engaged in an independently established trade, occupation, profession, or business who, in performing the services in question, are free from control or direction both under a contract of service and in fact.
(c) Persons performing services not in the course of the employing unit's trade or business.
(d) Persons employed on a commission basis.
(e) Persons employed by their own parent, spouse, or child.
(f) Members of any religious order performing any service for that order, any ordained, commissioned, or licensed minister, priest, rabbi, sexton, or Christian Science reader, and volunteers performing services for any religious or charitable organization.
(g) Persons performing services as student nurses in the employ of a hospital or nurses training school while enrolled and regularly attending classes in a nurses training school chartered or approved under law, or students performing services in the employ of persons licensed as both funeral directors and embalmers as a part of their requirements for apprenticeship to secure an embalmer's license or a funeral director's license from the state, or during their attendance at any schools required by law for securing an embalmer's or funeral director's license.
(h) Persons who have completed a four (4) year course in a medical school approved by law when employed as interns or resident physicians by any accredited hospital.
(i) Students performing services for any school, college, or university in which they are enrolled and are regularly attending classes.
(j) Persons with physical or mental disabilities performing services for nonprofit organizations organized primarily for the purpose of providing employment for persons with disabilities or for assisting in their therapy and rehabilitation.
(k) Persons employed as insurance producers, insurance solicitors, and outside salesmen, if all their services are performed for remuneration solely by commission.
(l) Persons performing services for any camping, recreational, or
guidance facilities operated by a charitable, religious, or
educational nonprofit organization.
(m) Persons engaged in agricultural labor. The term shall include only services performed:
(1) on a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife;
(2) in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of the farm and its tools and equipment if the major part of the service is performed on a farm;
(3) in connection with:
(A) the production or harvesting of maple sugar or maple syrup or any commodity defined as an agricultural commodity in the Agricultural Marketing Act, as amended (12 U.S.C. 1141j);
(B) the raising or harvesting of mushrooms;
(C) the hatching of poultry; or
(D) the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes; and
(4) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage, to market, or to a carrier for transportation to market, any agricultural or horticultural commodity, but only if service is performed as an incident to ordinary farming operation or, in the case of fruits and vegetables, as an incident to the preparation of fruits and vegetables for market. However, this exception shall not apply to services performed in connection with any agricultural or horticultural commodity after its delivery to a terminal market or processor for preparation or distribution for consumption.
As used in this subdivision, "farm" includes stock, dairy, poultry, fruit, furbearing animals, and truck farms, nurseries, orchards, or greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities.
(n) Those persons employed in executive, administrative, or professional occupations who have the authority to employ or discharge and who earn one hundred fifty dollars ($150) or more
a week, and outside salesmen.
(o) Any person not employed for more than four (4) weeks in any four (4) consecutive three (3) month periods.
(p) Any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service under the federal Motor Carrier Act of 1935 (49 U.S.C. 304(3)) or any employee of a carrier subject to IC 8-2.1.
(2) an additional amount on account of the tips received by the employee, which amount is equal to the difference between the wage specified in subdivision (1) and the wage in effect under subsections (b), (f),
and (g), (h), (i), and (j).
An employer is responsible for supporting the amount of tip credit taken through reported tips by the employees.
(d) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which employees are employed, between employees on the basis of sex by paying to employees in such establishment a rate less than the rate at which
he the employer pays wages to employees of the opposite sex
in such establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed
under similar working conditions, except where such payment is made
(1) a seniority system;
(2) a merit system;
(3) a system which measures earnings by quantity or quality of production; or
(4) a differential based on any other factor other than sex.
(e) An employer who is paying a wage rate differential in violation of subsection (d) shall not, in order to comply with subsection (d), reduce the wage rate of any employee, and no labor organization, or its agents, representing employees of an employer having employees subject to subsection (d) shall cause or attempt to cause such an employer to discriminate against an employee in violation of subsection (d).
(f) Except as provided in subsection (c), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after October 1, 1998, and before March 1, 1999, wages of not less than four dollars and twenty-five cents ($4.25) per hour.
(g) Except as provided in subsections (c) and
(i), (l), every employer
employing at least two (2) employees during a work week shall, in any
work week in which the employer is subject to this chapter, pay each
of the employees in any work week beginning on or after March 1,
1999, and before September 1, 2007, wages of not less than five
dollars and fifteen cents ($5.15) an hour.
(h) Except as provided in subsections (c) and (l), every employer employing at least two (2) employees during a work week shall, in
any work week in which the employer is subject to this chapter,
pay each of the employees in any work week beginning on or after
September 1, 2007, and before March 1, 2008, wages of not less
than six dollars ($6) an hour.
(i) Except as provided in subsections (c) and (l), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after March 1, 2008, and before September 1, 2008, wages of not less than six dollars and seventy-five cents ($6.75) an hour.
(j) Except as provided in subsections (c) and (l), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after September 1, 2008, wages of not less than seven dollars and fifty cents ($7.50) an hour.
(h) (k) This section does not apply if an employee:
(1) provides companionship services to the aged and infirm (as defined in 29 CFR 552.6); and
(2) is employed by an employer or agency other than the family or household using the companionship services, as provided in 29 CFR 552.109 (a).
(i) (l) This subsection applies only to an employee who has not
attained the age of twenty (20) years. Instead of the rates prescribed by
subsections (c), (f), and (g), (h), (i), and (j), an employer may pay an
employee of the employer, during the first ninety (90) consecutive
calendar days after the employee is initially employed by the employer,
a wage which is not less than:
(1) four dollars and twenty-five cents ($4.25) per hour, effective March 1, 1999;
(2) four dollars and ninety-five cents ($4.95) per hour, effective September 1, 2007;
(3) five dollars and fifty-seven cents ($5.57) per hour, effective March 1, 2008; and
(4) six dollars and twenty cents ($6.20) per hour, effective September 1, 2008.
However, no employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in this subsection.
(j) (m) Except as otherwise provided in this section, no employer
shall employ any employee for a work week longer than forty (40)
hours unless the employee receives compensation for employment in
excess of the hours above specified at a rate not less than one and
one-half (1.5) times the regular rate at which
he the employee is
(k) (n) For purposes of this section the following apply:
(1) "Overtime compensation" means the compensation required by subsection
(2) "Compensatory time" and "compensatory time off" mean hours during which an employee is not working, which are not counted as hours worked during the applicable work week or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate.
(3) "Regular rate" means the rate at which an employee is employed is considered to include all remuneration for employment paid to, or on behalf of, the employee, but is not considered to include the following:
(A) Sums paid as gifts, payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency.
(B) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of
employer's interests and properly reimbursable by the
employer, and other similar payments to an employee which
are not made as compensation for his the employee's hours of
(C) Sums paid in recognition of services performed during a given period if:
(i) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect the payments regularly;
(ii) the payments are made pursuant to a bona fide profit sharing plan or trust or bona fide thrift or savings plan, meeting the requirements of the administrator set forth in appropriately issued regulations, having due regard among other relevant factors, to the extent to which the amounts
paid to the employee are determined without regard to hours
of work, production, or efficiency; or
(iii) the payments are talent fees paid to performers, including announcers, on radio and television programs.
(D) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old age, retirement, life, accident, or health insurance or similar benefits for employees.
(E) Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or work week because those hours are hours worked in excess of eight (8) in a day or in excess of the maximum work week applicable to the employee under subsection
(j) (m) or in
excess of the employee's normal working hours or regular
working hours, as the case may be.
(F) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the work week, where the premium rate is not less than one and one-half (1.5) times the rate established in good faith for like work performed in nonovertime hours on other days.
(G) Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight (8) hours) or work week (not exceeding the maximum work week applicable to the employee under subsection
(j)) (m)) where the premium rate is not less than
one and one-half (1.5) times the rate established in good faith
by the contract or agreement for like work performed during
the workday or work week.
(l) (o) No employer shall be considered to have violated subsection
(j) (m) by employing any employee for a work week in excess of that
specified in subsection (j) (m) without paying the compensation for
overtime employment prescribed therein if the employee is so
(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand forty (1,040) hours during any period of twenty-six (26) consecutive weeks; or
computed at piece rates not less than one and one-half (1.5) times
the bona fide piece rates applicable to the same work when
performed during nonovertime hours;
(2) in the case of an employee performing two (2) or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half (1.5) times those bona fide rates applicable to the same work when performed during nonovertime hours; or
(3) is computed at a rate not less than one and one-half (1.5) times the rate established by the agreement or understanding as the basic rate to be used in computing overtime compensation thereunder, provided that the rate so established shall be substantially equivalent to the average hourly earnings of the employee, exclusive of overtime premiums, in the particular work over a representative period of time;
and if the employee's average hourly earnings for the work week exclusive of payments described in this section are not less than the minimum hourly rate required by applicable law, and extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate.
(o) (r) Extra compensation paid as described in this section shall be
creditable toward overtime compensation payable pursuant to this
(p) (s) No employer shall be considered to have violated subsection
(j) (m) by employing any employee of a retail or service establishment
for a work week in excess of the applicable work week specified
(1) the regular rate of pay of the employee is in excess of one and one-half (1.5) times the minimum hourly rate applicable to the employee under section 2 of this chapter; and
(2) more than half of the employee's compensation for a representative period (not less than one (1) month) represents commissions on goods or services.
In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be considered commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee.
(q) (t) No employer engaged in the operation of a hospital or an
establishment which is an institution primarily engaged in the care of
the sick, the aged, or the mentally ill or defective who reside on the
premises shall be considered to have violated subsection (j) (m) if,
pursuant to an agreement or understanding arrived at between the
employer and the employee before performance of the work, a work
period of fourteen (14) consecutive days is accepted in lieu of the work
week of seven (7) consecutive days for purposes of overtime
computation and if, for
his the employee's employment in excess of
eight (8) hours in any workday and in excess of eighty (80) hours in
that fourteen (14) day period, the employee receives compensation at
a rate not less than one and one-half (1.5) times the regular rate at
which the employee is employed.
(r) (u) No employer shall employ any employee in domestic service
in one (1) or more households for a work week longer than forty (40)
hours unless the employee receives compensation for that employment
in accordance with subsection (j). (m).
(s) (v) In the case of an employee of an employer engaged in the
business of operating a street, a suburban or interurban electric railway,
or a local trolley or motorbus carrier (regardless of whether or not the
railway or carrier is public or private or operated for profit or not for
profit), in determining the hours of employment of such an employee
to which the rate prescribed by subsection (j) (m) applies, there shall
be excluded the hours the employee was employed in charter activities
by the employer if both of the following apply:
(1) The employee's employment in the charter activities was pursuant to an agreement or understanding with the employer arrived at before engaging in that employment.
(2) If employment in the charter activities is not part of the employee's regular employment.
(t) (w) Any employer may employ any employee for a period or
periods of not more than ten (10) hours in the aggregate in any work
week in excess of the maximum work week specified in subsection (j)
(m) without paying the compensation for overtime employment
prescribed in subsection (j), (m), if during that period or periods the
employee is receiving remedial education that:
(1) is provided to employees who lack a high school diploma or educational attainment at the eighth grade level;
(2) is designed to provide reading and other basic skills at an eighth grade level or below; and
(3) does not include job specific training.
(u) (x) Subsection (j) (m) does not apply to an employee of a motion
(v) (y) Subsection (j) (m) does not apply to an employee of a
seasonal amusement or recreational establishment, an organized camp,
or a religious or nonprofit educational conference center that is exempt
under the federal Fair Labor Standards Act of 1938, as amended (29