by Christopher Clark | Oct 30, 2015 | Employment Law, Legal Matters Discussed
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.
If you believe you are a victim of religious discrimination, or your employer is failing to accommodate your firmly held religious beliefs, you should seek the advice of an experienced employment law attorney. Call or request a free consultation with Goodin Abernathy’s Indianapolis Employment Lawyers.
by Christopher Clark | Jul 29, 2015 | Employment Law, Legal Matters Discussed, Small Business
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.
If you have questions or concerns about the way your employer administers overtime pay or other employee benefits, please contact the Indianapolis Employment Law Attorneys at Goodin Abernathy, LLP.
by Christopher Clark | Mar 7, 2015 | Bicycle Accidents, Legal Matters Discussed, Personal Injury, Safety
The weather is finally turning, and Spring Break is almost here. Both mean children and adults alike will be dusting off their bicycles and riding through our neighborhoods and streets. Bicycling is a fun and healthy activity, but precautions should be taken to avoid personal injury and automobile accidents.
The National Highway Traffic Safety Administration has created the “Roll Model” program. As listed on their website, this if for everyone to adopt advanced bicycle safety.
In this program, being a “Roll Model” means:
• Riding and Driving Focused – never distracted.
• Riding and Driving Prepared – always expect the unexpected.
• Putting Safety First – we never know when a crash will occur, regardless of skill level or age; always wear a bicycle helmet when on a bicycle and a seat belt when in car.
• Following the Rules of the Road — a bicyclist is considered a vehicle on the road with all the rights on the roadway and responsibilities of motorized traffic.
• Expecting law enforcement officers to monitor and address unsafe behaviors between motorists and bicyclists that put bicyclists at risk.
• Sharing the Road – both vehicle drivers (motorist and bicyclist) should look out for one another and show mutual respect.
The website also has pledges that children, youth and parents may take to be good “Roll Models.”
While these precautions are great, if you or a child have been injured in a bicycle accident, please call Goodin Abernathy, LLP to discuss your situation.
Image courtesy of khunaspix at FreeDigitalPhotos.net
by Christopher Clark | Feb 11, 2015 | Insurance Bad Faith, Insurance Disputes, Legal Matters Discussed, Personal Injury
A recent Indianapolis Monthly Magazine article by Megan Fernandez tells the story of Kristine Bunch, a Greensburg mother who spent sixteen years in the Indiana Women’s Prison for a crime she did not commit.
In 1996 a Decatur County Jury convicted Kristine of murder and arson for a fire that destroyed Kristine’s home and killed her three-year-old son, Tony.
In 2012, after a long and hard-fought legal battle, Kristine’s conviction was overturned, and she was set free. Kristine has always maintained her innocence, and it was ultimately determined that the science used by fire investigators to convict her was flawed. This same flawed science is still being used by insurance companies to deny claims that are made by their insureds after a fire.
In the Bunch case, fire investigators wrongfully concluded that the fire was started and spread with the use of accelerants. An accelerant can be any flammable liquid spread around and then set on fire. An ATF report entered by the prosecution of Bunch suggested “heavy petroleum distillate,” the most common of which is kerosene. However, as Bunch’s legal team would later discover, years after her conviction, the ATF report was flawed. The investigator made assumptions about certain gas chromatography tests that were taken using carpet and other samples from Bunch’s home, specifically that they contained evidence of accelerant. Kristine’s conviction came four years after the National Fire Protection Agency promulgated its manual known as NFPA 921; yet the State Fire Marshall who testified against Kristine conceded he had never even read it.
One of the many lessons we can take from the Bunch case is that fire investigations can be very complex. After any fire, if there is insurance involved, the insurance company is going to hire a fire investigator to attempt to determine the cause and origin of that fire. In the event the insurance company suspects that the fire was intentionally set, their next step will be to engage an attorney to subject their policyholder to an Examination Under Oath, or (“EUO”). An EUO is basically a deposition that everyone agrees to submit to when they buy an insurance policy. If you don’t submit to the EUO, the insurance company will deny your claim. The job of the insurance company lawyers is to determine if there was a motive to intentionally set a fire. They are going to ask for your tax returns, credit card and bank statements, and many other personal documents. If you refuse to cooperate, they will deny your claim. This is not a process that anyone should submit to without an experienced lawyer in their corner.
Featured image is a copy of an altered ATF lab report analyzing samples from the fire scene became one of the keys to Kristine’s exoneration. (Photo courtesy Kristine Bunch)
If you or someone you know has suffered the agony of losing a loved one or property to a fire, and the insurance company is refusing to pay the claim, you need to hire an experienced fire attorney immediately. An insurance company that refused to pay for damages caused by a fire, without reasonable cause, can be subject to punitive damages. If you have questions about the way your insurance company is handling your fire claim, please contact us for a free consultation.
by Christopher Clark | May 25, 2014 | Legal Matters Discussed
Dram Shop laws allow for those injured by drunk drivers to seek redress against the bars or persons who furnished the alcohol under certain circumstances. Indiana’s Dram Shop law can be found at Indiana Code section 7.1-5-10-15(a). Specifically, the Dram Shop Act prohibits the furnishing of an alcoholic beverage to an intoxicated person, provided the person furnishing the alcoholic beverage knows the other person is intoxicated.
The Dram Shop Act represents a legislative judgment and the declared public policy of this state that providers of alcoholic beverages should be liable for the reasonably foreseeable consequences of knowingly serving visibly intoxicated persons.
In the recent Indiana Court of Appeals decision entitled, Pierson v. Service America Corporation, a young girl was killed and her friend seriously injured when they were struck by a vehicle driven by Trenton Gaff as he was leaving an Indianapolis Colts Football game.
Evidence revealed that Gaff drank beer before, during, and after the Colts game. He then drove and killed the Plaintiff and injured her friend as they were walking down the street. A lawsuit was filed against the vendor who was responsible for selling beer to Gaff at Lucas Oil Stadium. The vendor, in this case, uses hundreds of volunteers to sell beer at the games with portions of the proceeds going to their organization. Plaintiffs could not identify the actual person who sold the beer to Gaff. Vendor filed a motion for summary judgment and prevailed at the trial court because the Plaintiffs could not prove that the person who served Gaff had actual knowledge that he was intoxicated.
The Indiana Court of Appeals reversed the trial court’s decision. Evidence showed that Gaff had blood alcohol content (BAC) of .20 at around 8:00 p.m. that evening. An expert said that Gaff’s BAC would have been much less than that if the witnesses’ claims that Gaff had “only a few beers” were accurate. The Court of Appeals found that summary judgment was inappropriate even though the evidence was unclear as to who actually served him, how many drinks were served, and at what point Gaff would have exhibited signs of intoxication.
This decision could be considered a loosening of the high threshold required to prove Dram Shop liability in Indiana.
If you or a family member have been injured by a drunk or impaired driver and you have questions about who is at fault, contact the attorneys at Goodin Abernathy LLP for a free, no obligation consultation.
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