The Equal Employment Opportunity Commission (EEOC) issued a Resolution mourning the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery last week. In the resolution, the EEOC committed the agency to redouble its efforts to address institutionalized racism, advance justice, and foster equal opportunity in the workplace.
The EEOC advances opportunity in the workplace by enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
The anti-discrimination laws provide a limited amount of time to file a charge of discrimination. In general, a person needs to file a charge within 180 calendar days from the day the discrimination took place. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.
During a legal seminar I attended a couple years ago, an Indiana Occupational Safety and Hazards Agency (“IOSHA”) representative presented information covering work place injuries. The representative explained that since March 2015, new reporting and investigation regulations require IOSHA to investigate amputation injuries across the state. The presenter was clearly surprised how many work place amputations occur every day. This safety initiative is designed to investigate problems, enforce safety codes and prevent ongoing hazards for Indiana workers.
Amputations and Worker’s Compensation
The Goodin Abernathy LLP lawyers are not surprised by these findings because we frequently help clients who have suffered amputated fingers, hands and arms. Many of our clients need help understanding what Indiana worker’s compensation benefits are available for their damages. These benefits include lost wages from time off work (TTD or PTD), payment of medical bills, physical therapy and psychological counseling, or payments for their impairment due to permanent physical disfigurement (PPI).
The Indiana Worker’s Compensation Board uses a table to calculate the money owed for amputation PPI ratings. https://www.in.gov/wcb/index.htm What injured workers need to know is that employers and their insurance companies are obligated to address impairment ratings – but many times the workers are not told of these benefits. Also, the calculations and settlement offers insurance companies make do not always match the reasonable or fair value of a PPI rating: especially in amputation cases.
GA’s Indianapolis attorneys understand the medical and therapy plans needed to fully address amputation recoveries. We are also experienced in evaluating the correct PPI calculations for claiming impairment benefits with all types of amputations. Indiana has recognized the pervasive problems of amputation injuries. This article describes the problems and also discusses a case where a worker suffered two amputations, two different times on the same machine! (click here)
If you need help understanding which benefits are available for your recovery from an amputation, call us. If you need help calculating the extent of your amputation injury and the its recognized impairment value, contact us and put our experience to work. Goodin Abernathy LLP will uses its experience, resources (including expert medical review) and legal background to represent you. Don’t get cut short twice with your amputation – call us for legal help.
Most everyone is familiar with the word fraud. They’ve heard it used to describe a person that is not what they appear to be, or they have heard it used to describe an act of deceit. However, this common and acceptable use of the word fraud, in every-day conversation, can lead to misunderstandings as to what amounts to fraud under the law when an interaction with another person or business does not end in a desirable manner.
For example, most people have bought an item only to have it not work the way they expected, or they have hired someone to do a job and have been unhappy with the result. Unsatisfying as these types of experiences might be, it does not always mean a fraud has occurred within the meaning of Indiana law.
To prove actual fraud, within an Indiana legal context, there must be a:
(i) material misrepresentation of past or existing facts by the party to be charged
(ii) which was false
(iii) which was made with knowledge or reckless ignorance of the falseness
(iv) was relied upon by the complaining party and
(v) proximately caused the complaining party injury.
It is this first portion (i) that can sometimes be confusing because fraud cannot be based on unfulfilled promises or on statements concerning future events.
For example, if a person is given $20 in exchange for a promise to mow the lawn, and then fails to mow the lawn, the person has breached an oral contract to mow the lawn, but has not committed fraud because they only failed to fulfill a promise. On the other hand, if that same person said they had been hired by ten of the neighbors, they were incorporated and insured, and possessed industrial lawn mower equipment, a different result is likely if none of the statements were true. Indeed, if none of the neighbors had ever hired this person, there was no insurance or corporation, and there was no industrial equipment, the person likely made the material misrepresentations of past or existing facts that are needed to prove fraud.
From the above example, it can be seen that cases involving allegations of fraud are almost always unique to the specific facts and circumstances of the individual matter, and sometimes it can be challenging to know if you have been a victim of fraud or if you have been falsely accused of committing fraud.
The attorneys at Goodin Abernathy can help sort through these types of issues and are available for a free consultation if you have questions about fraud.
The economic impact on small businesses due to COVID-19 is undeniable. Further, the uncertainty surrounding the length of the shut-down and the availability of funds for relief loans has left many business owners wondering whether the business interruption coverage in their commercial general liability policy will provide coverage to offset financial losses incurred. Politicians in Washington have asked insurers to justify the refusal to pay out claims, and already class action lawsuits are being filed around the country against insurance companies.
When assessing whether business interruption coverage in a commercial general liability insurance policy applies to economic losses caused by COVID-19, the answer is—it depends on the particular policy. Generally speaking, however, most business interruption clauses require the loss of business income to be caused by direct physical loss or damage to the property that prevents the business from operating. Although it appears the COVID-19 virus can survive on surfaces for up to five (5) days, it is doubtful that this phenomenon would qualify as direct physical loss or damage to the property or be of sufficient duration to trigger most insurance clauses. In addition, many commercial general liability insurance policies exclude coverage for losses caused by viral contamination.
On the contrary, it is possible that the specific wording and coverages in any particular policy may provide coverage. For example, businesses operating in the food service industry or the hospitality industry may have specific clauses in their respective insurance policies that relate to losses caused by viruses or alternative business interruption losses like event cancellations. Consequently, all business owners who have sustained financial losses due to COVID-19 are encouraged to examine their insurance contracts.
The Coronavirus is disrupting medical care and our legal process. Goodin Abernathy is using the special powers granted by Governor Holcomb and the Indiana Supreme Court to assist our clients with Health Care Powers of Attorney and General Powers of Attorney documents for our Indiana clients. Since many nursing homes and hospitals prohibit visitors, the Goodin Abernathy LLP lawyers are working around those obstacles. Goodin Abernathy prepares the documents for signature using the phone, internet and text messaging with same-day service.
Online vendors offering boiler plate legal documents typically want consumers to buy subscriptions – but not at Goodin Abernathy. To us, you aren’t a consumer, you’re a client.
If your relative, loved one or friend is sequestered or quarantined, our personal service allows them to stay in place: they do not need to leave their homes or facilities. Goodin Abernathy lawyers will transmit the documents electronically and guide you through obtaining signatures in front of a notary public. Some facilities have notary public services available on site; however, if not, our staff can authorize the signatures under Indiana’s new “remote notary” plan. Using video conferencing, Indiana is allowing notaries the option of electronically witnessing signatures. Indiana’s Supreme Court Order No. 20S-MS-236 allows notaries and other persons qualified to administer an oath in the State of Indiana and swear a witness remotely by audio-video communication technology, provided they can positively identify the witness.
Estate Planning Documents Our GA Lawyers Will Prepare Remotely
Health Care Power of Attorney
If you become incapacitated mentally or physically, this document identifies a person you grant legal authority for making your health care decisions.
Living Will
If you become incapacitated, this document gives your medical care providers, loved ones and appointed Health Care Representative directions about the treatment you want. The Living Will is sometime referred to as an “Advanced Directive” or “Right-to-Die” form. Some people may not want heroic life-saving resuscitation if they are gravely ill.
General Power of Attorney or Durable Power of Attorney
If you become incapacitated, your elected representative assumes authority to make decisions and take financial action on your behalf. This could include signing checks to pay regular bills. It could also mean selling or transferring important property like your home or auto.
At Goodin Abernathy, we strive to provide:
1) Personal service with explanations of the documents you need
2) Set pricing
3) A fast response
4) Coaching for electronically transferring and signing the documents, and
5) Remote Notary service, if needed
Call us now for more information about your specific situation. We look forward to helping you!
Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.
There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.
The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.
The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.
So, what does the FFCRA require employers to do?
Generally, all employers must provide their qualifying employees with:
Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; AND up to 10 additional weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of COVID illness or a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
FAQ’s about the FFCRA:
How does an employee qualify for these FFCRA benefits?
Some examples include:
Being diagnosed with the COVID-19 virus.
Having symptoms of the virus.
Being required to be in self-quarantine.
Being ordered by your doctor to self-quarantine.
Having to care for a spouse or child who is infected with the virus.
Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.
Can both parents claim paid leave under the FFCRA?
There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.
Can my employer require me to use paid sick leave before paying benefits under the FFCRA?
It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.
How much pay am I entitled to receive?
It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.
The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.
How are employers expected to pay for these FFCRA benefits?
The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.
Can my employer disclose my diagnosis of COVID-19?
Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.
What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?
There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.
If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?
Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
If I have to take leave, can I get my job back when I return?
Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.
In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.
An injured worker potentially has two legal claims to recover damages. First, they have an Indiana Worker’s Compensation claim against their employer. Second, they may be able to collect from a responsible third-party.
Each state has its own work injury laws. Indiana’s system starts with making a claim through a government agency – the Worker’s Compensation Board. This agency operates very similar to a court. Papers are filed, attorneys are used and hearing members make decisions like judges. This link takes you to the main page for the Indiana Worker’s Compensation Board website. https://www.in.gov/wcb/ Go to the bottom of the page and look for a translation button. You can change it from English to Spanish, if necessary.
Another easy way to learn about Indiana’s worker’s compensation laws is to watch my YouTube videos. Search for Legalmente Hablando Indy or Goodin Abernathy LLP on the YouTube website. Here is an introduction video Jim Browne recorded that covers worker’s compensation. https://www.youtube.com/watch?v=uHV1TB21TZ4 You will learn that work injury claims allow employees to claim these benefits: medical costs, lost wages and a permanent partial impairment rating. The medical costs include charges for an ambulance, hospital, doctors, nurses, physical therapy, medicine, x-rays or MRI’s.
If a treating doctor orders an employee not to work for medical reasons related to the injury, the employer must pay for lost wages or salary. This is called Total Temporary Disability (“TTD”). The worker is paid 66.66% of her regular pay. But tax is not applied to the money. So if the worker usually earns $100.00 per week, then the employer owes $66.66 for each week the employee is unable to work.
Finally, if the injury is serious, the worker may claim a Permanent Partial Impairment. This idea is to compensate workers for physical and work problems they will suffer in the future. The State of Indiana created a list of dollar values for these injuries that limit a worker’s recovery. I can usually help improve the financial recovery for my clients.
Indiana requires employers to carry worker’s compensation insurance. If a worker is injured on the job, the employer’s insurance will cover these costs. If the employer does not have insurance, the law allows the injured worker to make claims against the contractor who hired the employer for the job. Frequently I help clients step up the ladder and find insurance to collect from.
If a person or company, other than the employer or a co-worker, causes a worker injury, then we can make a “third-party” claim for negligence. Negligence law is different from the worker’s compensation claim. Those cases are opened in a typical court with judges. A big difference between the two cases involves damages for pain and suffering. An injured worker can claim damage for pain and suffering in a negligence claim – but not in an Indiana Worker’s Compensation claim.
We are experienced handling various types of third-party negligence claims. Sometimes they are against construction companies where the general contractor has a legal, contractual duty to provide safety for workers on the job. We have handled claims where workers for other companies cause an accident. For instance, an electrician was on a scissor lift. A plumber drove a fork lift over the lift’s electric cord, pulled the it over and caused our client to fall 20 feet. Or, we have clients who were driving a vehicle for their job when another car caused them a wreck.
Remember, insurance companies are in business to make money- not pay it out. They are professional and know the law. That is why you should call me for legal advice. I give free consultations to review these cases with clients. I explain the law for your specific evidence and describe how I charge for my service. You will meet with me in person, speak Spanish and review the case. My staff speaks Spanish and knows about these cases Don’t wait – contact us now!
We have all seen it, and perhaps even done it ourselves. Driving down the road with a cell phone in our hand. Indiana House Bill 1070 “Distracted Driving,”(read here) passed the House by a vote of 86-10 last week and has been referred to the Indiana Senate. This bill will make it illegal to have a cell phone or other “mobile device” in one’s hand while operating a motor vehicle in Indiana. It modifies the existing law which prohibits texting while driving to include all uses of a mobile device that are not hands free or voice activated. The current law which makes it “unlawful to type, transmit, or read e-mail or text messages on a communication device while driving in Indiana,” has been in effect since July 1, 2011, but has been ineffective in curbing the behavior. This is due primarily, because the existing law as written, is difficult to enforce. This new law could go a long way to prevent distracted driving, and potentially save lives, because it will allow officers to write tickets simply by seeing a person operating a vehicle with a device in their hand, and there will be no requirement that they prove that the operator was actually using the device.
The Indiana Department of Labor defines distracted driving as, “any non-driving activity a motorist engages in that has the potential to distract him or her from the primary task of driving. Stressful jobs, busy lifestyles and technology are just a few reasons why individuals may engage in distracted driving activities.” https://www.in.gov/dol/2873.htm
There Are Three Primary Types of Distracted Driving:
Cognitive distraction takes your mind off the road.
Visual distraction takes your eyes off the road.
Manual distraction takes your hands off the wheel.
Texting, or otherwise using a device to search the internet, change a song, look up a contact, or like a Facebook post can be extremely dangerous because it involves all three types of distraction. Your mind is not focused on the road because you are concentrating on your device. Your eyes are also taken away from the road, as are your hands. As we all know, it only takes a second of distraction to cause a crash.
The U.S. Department of Transportation reports that in 2012, 3,328 people died in crashes linked to driver distraction, and more than 421,000 more people suffered a distracted driving-related injury. In fact, 17 percent of all crashes resulting in an injury involved driver distraction. More recent statistics indicate nine people are killed and more than 1,000 injured daily in accidents in which at least one driver was distracted.
Nearly 4,000 people were killed in crashes involving distracted drivers in 2015.
Distracted driving was the reported cause of death of 3,450 people in 2016.
An estimated 391,000 drivers were injured in distracted driving crashes in 2017.
For comparison, there were 39,773 gun deaths in the United States in 2017.
In 2019, distracted driving was a reported factor in 8.5% of fatal motor vehicle crashes. https://www.thezebra.com/distracted-driving-statistics/
If you support this Bill we would encourage you to contact your State Senator and request that they vote in favor of HB 1070,click here.
In lieu of the recent case against Tiger Woods, we thought it would be beneficial to explain the Dram Shop Act. Who is responsible when an accident or injury occurs because of someone being intoxicated?
Federal statistics & data show deaths caused by drunk drivers have dropped significantly in last 30 years, however, the phenomenon still occurs far too frequently.
In Indiana, when a drunk driver injures or kills a person, the bar or person that served the driver might share responsibility for the event. Under what is known as the Dram Shop Act, giving alcohol to a visibly drunk person can cause civil liability.
Now, the bar or person must possess or control the beverage and actually serve the alcohol. In addition, the person serving the alcohol must possess actual knowledge that the recipient was drunk at the time the beverage was provided. So, many times it is important to determine how much alcohol the person drank, over a certain time period as well as whether the person showed signs of intoxication like slurred speech or strange behavior.
If you have questions, an attorney can help sort through the issues to determine if these factors in the Dram Shop Act apply.
Once the Charge is filed, it is sent to your employer, and they are given an opportunity to investigate the allegations and file a response. The employer may conduct the investigation internally, or, they may choose to hire an outside attorney to investigate the allegations in your Charge. The employer’s response is referred to as their “Position Statement.” Usually, the Position Statement filed by your employer will deny the allegations in your Charge, and may state other non-discriminatory reasons for any adverse employment action that has been taken against you. For example, the employer may state that you were a bad employee, that you missed too much work, or you did not follow instructions. If this is the case, the EEOC may ask you to provide additional evidence to support your claim of discrimination or harassment.
Once both sides have had an adequate opportunity to state their respective positions, the EEOC may move forward with an investigation.
WILL THE EEOC HELP ME SETTLE MY CASE?
If both sides agree, the EEOC may refer your case for a settlement conference, also called “mediation.” The EEOC has mediators on staff who will help both parties to resolve your dispute.
If both parties don’t agree to mediation, or if mediation is unsuccessful, the EEOC will move forward with an investigation into the allegations in your Charge of Discrimination. They can interview witnesses and request documents from either party to assist with that investigation.
HOW LONG DOES THE EEOC PROCESS TAKE?
Currently, an EEOC investigation can take up to 1 year. However, If the EEOC does not complete its’ investigation within 180 days after you filed your Charge, then you can request that they issue a Right to Sue letter. The Right to Sue letter allows you to file a lawsuit against your employer. It is very important to remember that you cannot file a lawsuit against your employer until you have received the Right to Sue letter from the EEOC.
Upon receipt of your Right to Sue Letter, you have 90 days in which to file a lawsuit against your employer. If you don’t file suit within 90 days, your claim will be barred.
What should I do if I feel I am the victim of harassment or discrimination?
The most important thing to do if you believe you are the victim of harassment or discrimination is to report it to your employer, preferably in writing. If you don’t report, your employer can always deny that they knew that any harassment or discrimination was occurring. Many employers have a handbook which should contain the company’s policies and procedures for reporting discrimination, harassment, or a hostile work environment. If you report harassment or discrimination, and your employer does not remedy the situation, please call me for a free consultation.
