Call Today for a Free Consultation 317-843-2606

Keep Dreaming!

Relieving the fears and anxiety of our dreamer families, the United States Supreme Court ruled the DACA program may continue. https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

The court decided the Trump administration’s attempt to end the program did not consider the harm about 700,000 Hispanics would suffer if their immigration status was suddenly yanked away.  https://www.msn.com/es-us/noticias/inmigracion/la-corte-suprema-falla-en-favor-de-los-so%c3%b1adores-y-rechaza-la-revocaci%c3%b3n-del-programa-de-inmigraci%c3%b3n-de-trump/ar-BB15FsIR

The court considered the Trump administration’s move violated equal protection rights because it was motivated by discriminatory or racial hostility.  The administration did not follow proper legal steps to end the DACA program.  So for now, our DACA friends can live, work and enjoy life in the United States.  But the issues is not finished.

The ruling does not end the DACA debate because if proper legal steps are taken through politics, the government could end the program.  Trump’s administration just tried ending it the wrong way.  https://www.msn.com/es-us/noticias/inmigracion/los-dreamers-respiran-pero-millones-de-inmigrantes-siguen-en-vilo-por-estas-decisiones-de-trump/ar-BB15FGYx

So that means Hispanics and equal justice supporters must back politicians that will protect the program.  Those politicians need votes and ground support before upcoming elections. Be more than dreamers – take action! Hispanics, let’s raise our voices, share our experience and show others why we are an important part of this country.

For today, take a deep breath and smile.  Remember to appreciate that America still respects the rule of law.

Employees vs. Sub-Contractors in Indiana | W-2 vs 1099-Misc

Employees vs. Sub-Contractors in Indiana | W-2 vs 1099-Misc

Whether you are classified as an employee or a sub-contractor may have significant legal and tax obligations. Many people don’t realize that there’s a difference between employees and sub-contractors in Indiana. However, sub-contractors or independent contractors as they are often referred to, don’t receive the same legal protections from the government and don’t have the same rights in the event that you are not paid for your work. Whether you’re an employee or a sub-contractor, you need to spend some time studying the rules and regulations regarding your position and become aware of your rights. If you’re a business owner, it’s even more crucial to distinguish between the two because you have some tax liabilities and obligations.

The Difference Between Employees and Sub-Contractors

Both employees and independent-contractors provide services to you and both get paid for their services. That’s the only commonality between the two types of associates. The IRS states that you can distinguish between employees and independent contractors based on three different categories:

Behavioral Control – Who determines how much control you have over how the job is done. Is it you or is it your boss? Does the employer provide instructions, methodology, training in that methodology, and directions on how and when to carry out the job. If so, this looks and smells like an employer/employee relationship. However, if you are independent, can control the scope of your own work, then your job has the characteristics of an independent contractor.

Financial Control – Who controls how you are paid?  Do you bid for the work and then submit a bill or invoice?  Or, are you paid an hourly wage?  In some industries it may be more difficult to distinguish between independent contractors and employees.  Who controls how and when the worker is paid, how they’re reimbursed for equipment used and services rendered, and who bears the profits and loss, etc. An employee can fully expect the employer to provide all necessary tools and equipment to perform their job, and to reimburse them for wear and tear of the equipment they might bring to the job. For example, an employee drives to different locations in their personal car to perform their job might expect to be reimbursed by the employer for the fuel, maintenance and repairs. However, and independent contractor is considered self-employed and must pay all of these expenses out of their pocket. These expenses aren’t considered the business owner’s concern. Think of an independent contractor as a small business owner.

Relationship between the Parties – The most significant difference between an employee and an independent contractor is their relationship with the employer. Subcontractors should have written contracts for every job they do or for a fixed duration. Employees, on the other hand, typically do not have contracts.  They are employed “at-will” but they receive regular pay checks, and have taxes deducted from their pay.  Employees also may have benefits associated with their employment such as health insurance, paid time off, and reimbursements for expenses

Why Is the Classification Between Employee & Independent Contractor Important?

This classification is very important because it impacts how you file your taxes. Here’s a brief description of your obligations based on whether you’re an employer, employee or a sub-contractor:

Employee – If you’re an employee, your employer is responsible for paying your social security and employment tax obligations by withholding the amount from your wages or salary. In return, you won’t need to concern yourself about the obligatory payments to the government.

Independent Contractor – If you’re a contractor, you’re responsible for your own self-employment taxes, which must be paid quarterly.

Employer – As an employer, the distinction is very important because you’ll need to pay the taxes, social security, and insurance on your employee’s behalf, and you will issue them a Form W-2 at the end of each year. You can deduct the needed amount from your employee’s salary and compensation. You will also have to pay state taxes and federal unemployment taxes on behalf of your employees. If you have independent contractors working for you, you are not required to withhold payroll taxes, and you will issue a Form 1099 at the end of the year.

Because it seems simpler to hire independent contractors, employers often misclassify their employees as such in an effort to avoid paying payroll taxes, etc.  If you are found to be misclassifying your employees as independent contractors, you may be subject to fines and penalties issue by the US or Indiana Department of Labor.

Reporting the Earnings of Employees & Independent Contractors

As a business owner, you need to report every employee and independent contractor you have on hand. You also need to make sure you have classified them correctly. The Department of Labor is very stringent on the difference between an independent contractor and an employee. In fact, they have cracked down on entire industries that try to misclassify employees as independent contractors.  You are also required to pay employees overtime for every hour over 40 hours in a given week. Overtime is 1.5 times the amount of your regular hourly rate. This is another reason why employers seek to classify their workers as independent contractors.  That is, they are trying to avoid the overtime requirements of the Fair Labor Standards Act.

What Should You Keep in Mind?

There are significant penalties for employer who refuse to pay their employees’ wages.  In Indiana, this can be up to 2 times the amount of wages, plus attorney’s fees.  Failure to pay an independent contractor does not have these penalties.  Rather, this is just a simple breach of contract claim.  If you are an independent contractor, it is important to have a written contract. As part of the terms of that agreement, specify that you can seek attorney’s fees if you are not paid.  Without such a clause, it may be difficult, and expensive to find an attorney to take your case.

If you believe your employer has misclassified you as an independent contractor, you should contact an attorney immediately. It may be that you want to report the company to the Department of Labor.

For more information on the misclassification of employees, you can seek guidance from the US Department of Labor.  https://www.dol.gov/agencies/whd/flsa/misclassification

 

EEOC Issues Resolution

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.

If you have questions related to employment discrimination, harassment, or retaliation, please feel free to contact Goodin Abernathy.

Amputation Accidents in Indiana

Amputation Injuries at Work

During a legal seminar I attended last week, 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.

FAQ for IOSHA Regarding Amputations

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.

What is Fraud?

What is Fraud?

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.

Emel Doner’s Personal Injury Case

I was severely injured, while walking on a sidewalk, by a reckless driver. The accident happened out of town, in a major city on the west coast, while we were on vacation. I had broken bones, possible spine injury and severe lacerations. After being treated at a trauma center of a major hospital, I was forced to return home with tremendous amount of pain and discomfort, while cancelling the rest of our vacation which took years of planning. I had to undergo months of treatment and was left with a lot pain and suffered from depression. Meanwhile the medical bills started coming in, and I was in no condition to deal with the out-of-state healthcare providers and out-of-state accident insurance issues.

It was at this point that I contacted Christopher (Chip) Clark at Goodin Abernathy for his legal help and guidance. Right from the beginning, he had been very gracious, sympathetic to my situation and highly professional in his dealings with me and my husband. Chip and his staff worked diligently with the out-of-state and in-state healthcare providers, the responsible party’s insurance company and Medicare to gather and disseminate all pertinent documentation. Within a short period of time, Chip was able to negotiate a settlement with the responsible party’s insurance company. The settlement amount was the maximum possible that we could have received.

I thank Chip for his responsiveness, his competence and the extremely professional manner with which he dealt with me and my husband.

Emel Doner