dissenting.
It is my view that a bonus, whether or not tied to a particular level of profit, does not constitute wages.
Baesler's Super-Valu v. Indiana Commissioner of Labor (1986) ist Dist.Ind.App., 500 N.E.2d 243, and Die & Mold, Inc., v. Western (1983) 1st Dist.Ind.App., 448 N.E.2d 44, are not to the contrary. Both cases involved vacation pay earned on a regular and periodic basis for each week actually worked.
In reality, the seeds for my dissent are contained within Die Mold itself. Die Mold drew a very clear and very specific distinction between vacation pay and bonuses. The court held that the two are treated differently because vacation pay is part of regular compensation. 448 N.E.2d at 46-47.
Furthermore, it is of significance that our First District which decided both Die Mold and Baesler's Super-Valu, also decided the recent case of Jeurissen v. Amisub, Inc. (1990) ist Dist.Ind.App., 554 N.E.2d 12, trans. denied. Finding no impediments within its earlier Die Mold and Baesler's Super-Valu decisions, the court quoted with approval from Wilson v. Montgomery Ward & Co. (1985) N.D.Ind., 610 F.Supp. 1035, holding that a bonus is the "something extra" referred to in Wilson, not tied to compensation for regular work done on a periodic basis which pursuant to statute would have been payable, if requested, on a twice monthly basis.
Here the bonus was not payable on any periodic basis nor was it tied to any qualitative or quantitative degree of performance by Dickinson. Thus, the bonus payable here is unlike the commissions payable in Licocci v. Cardinal Associates, Inc. (1986) 1st Dist.Ind.App., 492 N.E.2d 48, trans. denied, or the vacation pay involved in both Die Mold and Baesler's Super-Valu. Commissions are directly related to the employee's performance, usually a volume of sales; while, as earlier noted, vacation pay is earned on a periodic and continuing basis and is directly tied to the time worked.
The majority here finds significance in the fact that the bonus was to be pro-rated if Dickinson was not employed at the end of the year, concluding that the bonus was thus tied to the amount of time she worked. I disagree. Dickinson was entitled to the bonus at year's end regardless of the number of hours or days worked during the year of her employment. It is inaccurate to say that the bonus was related to "the amount of time she worked". Maj. opinion at 709. It is accurate, however, to say that the bonus was tied to the fact of Dickinson's employment at year's end. The same may be said to apply to virtually all employee benefits-acerued vacation, insurance, parking privileges and other emoluments-which are not wages.
Although Dickinson's bonus was not tied to profits it was nevertheless not a portion of her wages. The trial court so found from the evidence before it. We should not substitute our categorization of the bonus under the guise that it is solely a question of law. To be sure, what is and what is not a wage is a legal question. But the answer to the question depends upon the surrounding circumstances and the context in which the bonus is to be paid. The trial court here did not unreasonably conclude that the $5,800 was not a wage so as to trigger the punitive and attorney fee provisions of 1.C. 22-2-5-2.
The majority understandably cites Todd v. Stewart (1991) 3d Dist.Ind.App., 566 N.E.2d 1077, trans. denied. Although the issue before the court was whether a "good *712faith dispute" exception exists with respect to the treble damage and attorney fee provisions of 1.C. 22-2-5-2, the court held, by necessary implication, that the bonus there involved, when not paid, gave rise to a claim under I.C. 22-2-5-2. Be that as it may, I believe Jeurissen and Wilson to be more persuasive and would decline to follow Todd.
1 fully concur in the majority's determination that the judgment was properly entered against only Travel Trade, Inc.
I would affirm the judgment in all respects.