Generally speaking, an employer must pay its employees for the work that they perform. This is true whether you are paid hourly, salary, commissions, or by the piece, or any other method for determining the amount. In Indiana, these wages must be paid either twice a month (semi-monthly) or every two weeks (bi-weekly). Failure to pay wages earned can result in penalties for the employer up to two times the amount of unpaid wages, plus attorney’s fees.
In Indiana, if you are an hourly employee with an agreed upon wage, your employer is obligated to pay you for the hours you work within ten (10) days of the payment period end. For overtime, an Indiana employee is entitled to 1.5 times his or her hourly rate for any of the hours worked past a 40 hour work-week. If an employer does not make these payments, an individual may have what is known as a wage and hour claim.
The Wage Payment Statute is for employees who have voluntarily left employment or are still currently employed.
Under both Indiana statutes, an employee is entitled to liquidated damages ranging from 10% to no more than double the amount of wages due and reasonable attorney’s fees. These damages are in addition to the wages owed. These statutes are designed to pay individuals what they are due. Immigration status does not matter, and it is illegal for an employer to use immigration status as a justification for not paying wages.
The Indiana Supreme Court reiterated the importance of Indiana’s Wage and Hour laws and their importance for all workers who depend on their paychecks to be paid regularly.
“I write separately to observe that the facts of this case dramatize the point that the statute confers on all employees the right to recover treble damages and attorney’s fees for failure to pay wages, regardless of the employees’ circumstances. This is perfectly understandable as applied to the vast majority of workers who are dependent on their paychecks for their day-to-day expenses. These employees need the money currently, not at the end of protracted litigation, and often do not have the economic staying power to engage in a court battle over relatively small amounts. A statute providing one party with treble damages and attorney’s fees is a very substantial deterrent to an employer’s playing fast and loose with wage obligations. As applied to claims of most workers this is very understandable legislative policy.”
If you have worked, but not been paid, please contact the employment attorneys at Goodin Abernathy, LLP to determine if you have a wage and hour claim. Your time and effort is valuable – talk to us to determine your options for recovering your hard earned wages.
Too often I see clients come in with serious injuries after they have been struck by a vehicle carrying no or very limited liability insurance. The first question I ask is how much Uninsured or Underinsured Motoristcoverage (UM/UIM) they have through their own insurance carrier. More often than not, I receive a blank stare in response.
What is Uninsured/Underinsured Motorist Coverage?
Uninsured/Underinsured Motorist coverage is coverage you purchase to protect yourself from uninsured or under-insured drivers. If you are seriously injured in a car accident or by a motor vehicle, the wrongdoer may not have enough insurance coverage to adequately compensate you for your injuries. The law requires, unless you specifically waive it, that UM/UIM coverage be a part of your car insurance policy. This is excellent protection against those in our society who do not play by the rules or who have little to no assets to protect. The best part though? It’s cheap coverage! For just a few dollars a year you can increase your UM/UIM coverage to help protect yourself on the roadways.
So talk to your insurance agent about UM/UIM coverage and make sure you have enough coverage to protect you if you are injured by a driver without adequate insurance. If you have an umbrella policy, make sure it includes UM/UIM coverage, as well.
In the recent case of EEOC v. Consol Energy, Inc., 1:13-cv-00215 in the United States District Court for the Northern District of West Virginia (more info), the claimant, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies’ mine in Mannington, W.V., for over 35 years. When the mining company required employees to use a newly installed biometric hand scanner to track employee time and attendance, Butcher repeatedly informed company officials that submitting to biometric hand scanning violated his sincerely held religious beliefs as an Evangelical Christian. He wrote a letter to company officials explaining his beliefs about the relationship between hand-scanning technology and the “Mark of the Beast” and the Antichrist discussed in the New Testament’s Book of Revelation. Mr. Butcher requested an exemption from the hand scanning as a reasonable accommodation based on his sincerely held religious beliefs.
Consol argued that Butcher admitted that the current version hand scanner left no actual mark; however, he testified that these scanners “are being used as part of a system of identification being put into place that will be used to serve the antichrist as foretold in the New Testament Book of Revelation and which creates an identifier for followers of the antichrist known as ‘The Mark of the Beast,’” and that “[t]he fact that a believer draws a line at the first step in what he sincerely believes to be an immoral process rather than the last step of that process does not alter the employer’s accommodation duty.”
The EEOC repudiated Consol’s attempts to poke holes in the logic of Butcher’s beliefs, contending that it is unconstitutional for Consol to demand theological accuracy or consistency. “[A]s EEOC has previously pointed out, and as the Court instructed the jury, religious beliefs need not be seen as rational, doctrinally consistent, or accurate in order to be protected under Title VII.”
The jury in this case unanimously awarded Mr. Butcher $150,000 in compensatory damages. The Court also ordered that Consol Energy must also pay Butcher an additional $436,860.74 in back pay and front pay for the Title VII violations found by the jury.
A common question that our clients ask us is, “Should my employer be paying me for overtime?” Both Indiana and Federal Law require the payment of overtime wages unless an employee is exempt. Some examples of exempt employees include outside salespeople, teachers, executive, administrative or professional employees, certain farm workers, and employees in certain computer-related occupations. The vast majority of hourly workers are entitled to receive overtime for every hour, over 40 hours, worked in a given week. Current Federal Minimum Wage is $7.25 per hour. Therefore, even if you are paid a salary, your average hourly wage, based on a 40 hour week, must equal $7.25/hr. If you are working more than 40 hours per week, your employer should be paying you time and a half for every hour over 40 worked during the week. A common misconception among employers is that all salaried employees are exempt from the overtime requirements. This is simply not true.
Another area where we often see abuses in wage and hour laws is in the case of tipped employees. Tipped employees are individuals engaged in occupations in which they customarily and regularly receive more than $30 a month in tips. The employer may consider tips as part of wages, but the employer must pay at least $2.13 an hour in direct wages.
The employer who elects to use the tip credit provision must inform the employee in advance and must be able to show that the employee receives at least the applicable minimum wage (see above) when direct wages and the tip credit allowance are combined. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage, the employer must make up the difference. Also, employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.
Wages required by the FLSA are due on the regular payday for the pay period covered. Deductions made from wages for such items as cash or merchandise shortages, employer-required uniforms, and tools of the trade, are not legal to the extent that they reduce the wages of employees below the minimum rate required by the FLSA or reduce the amount of overtime pay due under the FLSA.
The United States Department of Labor’s Wage and Hour Division (WHD) is responsible for enforcing some of the nation’s most comprehensive federal labor laws on topics including the minimum wage, overtime pay, record keeping, child labor, family and medical leave, migrant and seasonal worker protections, lie detector tests, worker protections in certain temporary guest worker programs, and the prevailing wages for government-funded service and construction contracts. Collectively, these laws cover most private, state, and local government employment, and protect over 135 million workers in more than 7.3 million establishments nationwide. The Department of Labor has even created an app for employees to keep track of their time to determine if they may be entitled to overtime.
On June 30th, the DOL unveiled a proposed rule that would broaden federal overtime pay regulations to cover nearly 5 million more people and raise the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption to $50,440 per year in 2016, up from the current $23,660.
Employment law attorneys anticipate significant increases in the number of employees who will be entitled to overtime pay. Thus, even if you are currently considered an exempt employee, you may no longer be considered exempt under the new proposed rules.
Poor road conditions, such as missing guardrails, erosion, potholes and faulty design, can be the cause of vehicle damage or serious personal injuries for the unwary driver and his passengers. However, whether a person can sue for the resulting damage or injuries is a complicated question.
Anyone who is a victim of a car accident due to poor road conditions must prove that the road conditions actually caused the damage to the car and/or the injuries. The victim must be able to demonstrate that the agency or company responsible for maintaining the road was negligent in its duty to provide a safe roadway — or that they failed to adequately warn drivers of a potential hazard. Finally, the plaintiff must determine if the agency responsible is allowed to be sued in court.
Who Maintains the Roadway?
Roads are typically maintained by cities, counties and states. Different maintenance responsibilities for a certain roadway can also be shared by more than one governmental agency. For example, a state might be responsible for filling potholes and paving the roads, while a city might be responsible for snow plowing and de-icing the roadways. When roads are constructed, there are strict rules for the implementation of signs and guardrails to warn motorists of road conditions. Figuring out which agency was responsible is important, not only for suing the proper party, but for determining if the particular agency can be sued at all.
How can you Prove a Road was Negligently Designed or Maintained?
Once it is determined who is responsible for maintaining the roadway, the victim of an accident must prove that the agency was negligent in the way the road was designed, or in its failure to maintain the road. That is to say the agency could have, and should have, repaired the road but chose not to do so, or that the agency constructed the road in a defective manner.
For example, a county might choose to reduce funding for the addition of guardrails in an area where cars are known to frequently leave the road and roll down a steep embankment. If a car goes off the road and rolls down the embankment, and it can be proven that guardrails would have prevented such an accident, the county may be responsible for the resulting injuries to the driver and passengers in that car.
Determining the Cause of the Car Damage or Injury
Proving that the damage to the vehicle or the injuries to passengers was the direct result of the agency’s negligence will almost always require an expert opinion. Therefore, it is very important to engage an attorney that is experienced in handling personal injury claims caused by defective road conditions. This way, an expert can be retained to examine the roadway, take photographs and measurements, and preserve important evidence before any changes can be made to the accident scene.
Can the Agency Be Sued?
Most government agencies, including states and the federal government, have immunity from lawsuits, which means that they cannot be sued (this is called “sovereign immunity” when it is applied to the federal and state governments, and “governmental immunity” when it is applied to city, county and other smaller governments). This immunity severely limits a victim’s ability to seek compensation from a responsible government entity.
Although government agencies are often immune, there are exceptions to immunity under specific conditions. Typically, negligence in maintaining a roadway will create an exception to immunity and allow a victim to sue. However, there may be narrow constraints, for example, the negligence must have been “gross” (i.e. extreme negligence).
The exact circumstances under which a plaintiff can sue for injuries due to defective road conditions can vary greatly from state to state. Indiana’s Tort Claims Act is found at I.C. 34-13-3-1. It requires that the State agency be notified within 180 days of the accident. Failure to timely file a Tort Claim Notice will mean that your case will be dismissed. In addition to the notice requirements of the Tort Claims Act, in Indiana a victim must file a lawsuit within 2 years of the date of the accident. This is known as the “statute of limitations.” If the victim fails to file the lawsuit in the correct court before the deadline set by the statute of limitations, a court will not allow the plaintiff to proceed, and the case will be dismissed.