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Employment Law Resources

Employment Law Resources

I often receive calls from potential clients who are confident that they have been victims of discrimination or harassment, or that they have been wrongfully terminated, yet they may not be aware of the legal meanings of those terms. The law protects employees from discrimination and harassment based on Race, Color, Sex, National Origin, Age (over 40), Disability, Pregnancy, and Genetic Information. To be clear, Indiana is an “at will” employment state. That simply means that most of us work at the will of our employers. Stated another way, we can be fired for any reason (or no reason at all) just not a discriminatory reason. For example, there is nothing illegal about an employer firing an employee based on the quality of his or her work. But, it would be illegal to fire an employee based on their race or age, or gender. Rare is the case where an employer will actually say, “I am firing you because you are too old.” Therefore, we might have to infer the reason, based on other factors. Does your boss suggest that you are too old for the job? Do they ask you questions like, “When are you going to retire?” These types of things might suggest that age was a factor in your termination, even though the employer’s stated reason for firing you was because of “poor work performance.”

There are some really good resources available, through the Equal Employment Opportunity Commission (“EEOC”), that explain what is meant by wrongful termination, and how those laws apply to employees. The EEOC is the federal agency that is charged with enforcing anti-discrimination laws in the United States. In fact, most discrimination claims must first be filed with the EEOC before you can file a lawsuit against the employer. This process is known as “exhausting your administrative remedies.” Below are some links to some very useful information as it pertains to different types of Discrimination and Harassment:

Age Discrimination: https://www.eeoc.gov/age-discrimination
Disability Discrimination: https://www.eeoc.gov/disability-discrimination
Race/Color Discrimination: https://www.eeoc.gov/racecolor-discrimination
Sex Discrimination: https://www.eeoc.gov/sex-based-discrimination
Pregnancy Discrimination: https://www.eeoc.gov/pregnancy-discrimination

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. For more information on what constitutes harassment, you can go to the EEOC’s site by clicking the link below:

Harassmenthttps://www.eeoc.gov/harassment

Another type of prohibited activity is Retaliation. To be illegal, the retaliation in the employment context must be related to a “protected activity.” For example, if you complained to your Human Resources department that you were being discriminated against based on sex, and then you were immediately fired for engaging in that protected activity, that would be considered retaliation. Below is some useful information to help you understand what types of retaliation are prohibited by employers: https://www.eeoc.gov/retaliation

Lastly, we often get calls about how to collect unpaid wages. If the amount is less than $6,000, the best way to collect those wages is by filing an Online Wage Claim with the Indiana Department of Labor (“IDOL”). Below is a link to the IDOL’s Online Wage Claim Form along with instructions for how to proceed. It the amount is greater than $6,000, we suggest that call us for a free consultation with one of our attorneys that is familiar with Indiana’s Wage Claim and Wage Payment Statutes.

Indiana Department of Labor Online Wage Claim Form: https://www.in.gov/dol/2734.htm

As always, contact me – Chip Clark – if you need representation or advice on any of these subjects.

 

Safety While Commuting on the Monon Trail

Safety While Commuting on the Monon Trail

It can be difficult sometimes to stay positive during the current COVID-19 crisis. However, experts recommend that it is not only good for our physical health, but also our mental health to get outside and exercise. With the decrease in motor vehicle traffic, many people are riding their bikes for exercise and enjoyment. In fact, the current pandemic has led to a tremendous surge in bicycle sales around the globe. If you have been shopping for a new bike lately you will know what I am talking about. We have a wonderful system of shared paths here in Central Indiana. As more and more people are using these paths, it is up to each of us to ensure that they are safe for all users and avoid personal and bicycle accidents or injuries whenever possible.

Passing safety on biking & walking trailsI have always enjoyed cycling, but had fallen away from the activity until recently. The pandemic has allowed me to renew my love for cycling, and I have used this as an opportunity to ride more frequently. I try to ride to work 2-3 days per week, as my schedule allows. With the Courts being closed to the public, and most hearings taking place via phone call or Zoom, I have not needed to wear a suit and tie every day. My current commute is about 25 miles round trip. This takes me about 1 hour each way, and I have found that my rides to and from work are a great way to relieve stress, enjoy the outdoors, and save a little money on gas.

Most of my commute is on shared paths, used by both cyclists and pedestrians, which allows me to avoid interaction with motor vehicles, for the most part. However, most of the accidents and close calls that I have observed were between two bicyclists or bicyclists and pedestrians.

The most common mishaps that I have observed can usually be narrowed down to 3 things: 1. Bicyclists riding too fast for the conditions; 2. Pedestrians who move suddenly out of their lane and in to the path of bicycle that they don’t know is approaching, and 3. Confusion between bicyclists and motorists at the intersections of shared paths and roadways.

I ride a relatively slow, fat-tired bike, with an average speed of 12-14 miles per hour. In my opinion, this is plenty fast for shared trails. To go faster than that in an area where pedestrians are walking is just a recipe for disaster. There are places on the Monon Trail, for example, where cyclists can go faster than that, but when there are crowds of people running and walking and crossing the trail, it is simply not safe.

The other danger that I have observed is cyclists overtaking pedestrians without warning them of their approach. In 2016, the Indiana Legislature removed the requirement at I.C. 9-21-11-8, that all bikes must be equipped with an audible signal device, that can be heard from a distance of 100 feet, such as a bell. I think this was a mistake. A simple bike bell is an easy way to alert others, particularly pedestrians, that you are passing them. In my experience, most pedestrians who walk on shared paths, appreciate the signal that a bike is approaching and will be passing them. Most pedestrians will usually give a hand signal that they heard the bell, and many will even say, “Thank you,” as I pass. Many people walk with their children and their pets. An audible bell gives them a heads up to keep their kids or their pets close as a bicycle passes.

Some pedestrians who are not as familiar with walking on shared paths may be startled by an audible bell. I have observed pedestrians jump upon hearing the bell, or quickly move out of the way. I have observed pedestrians turn suddenly, which can cause them to inadvertently move left and into the path of the cyclist. This can be dangerous. Just last week, I saw a runner, who had reached the point in her run where she was going to turn around and go the other direction. She quickly turned around just as a bicycle was overtaking her. The cyclist did not have a bell to alert his presence. The bell is only to alert pedestrians so that they know a bicycle will be passing on their left. It is not a call to get out of the way, or to even change your course in any way. If more cyclists used a bell, I believe pedestrians would be more attuned, and travel on our shared paths would be even safer. If you are walking on the trail, it is always a good idea to move to the right of the trail before stopping, and look both ways before crossing the trail and reversing direction.

Lastly, there is a lot of confusion about what motorists and cyclists are supposed to do when the shared path intersects with vehicular traffic. If you spend any time on Nextdoor, you will see raging debates about who should stop and when. Everyone needs to follow the rules of the road whether you be driving a car or riding a bicycle. All bikes and motor vehicles should heed the signs that pertain to them at each individual intersection. Bikes and pedestrians are required to stop and make sure the intersection is clear of vehicle traffic before proceeding. If there is a flashing yellow light, motorists need to be prepared to stop to allow pedestrians to cross. Usually, motor vehicle drivers will stop for a flashing yellow light if they see bikes or pedestrians waiting to cross. Always make sure it is safe to proceed before riding your bike across vehicular traffic.

If everyone takes a moment to make sure that their bike is functioning properly, and we all pay attention to the rules of the road, our great system of trails will be safer for everyone. Now get outside and ride your bike!

Chip Clark is a partner at Goodin Abernathy, LLP where he specializes in representing clients who have been injured in personal injury accidents. You can follow him on Instagram at @ChipClarkIndy

Discrimination Against LGBTQ Workers – Bostock v. Clayton County

Discrimination Against LGBTQ Workers – Bostock v. Clayton County

Hi. My name is Chip Clark, and I am a partner at Goodin Abernathy, where I focus primarily on the rights of employees.

On June 15, 2020, the United States Supreme Court issued its landmark decision in the case of Bostock v. Clayton County, holding that federal law prohibits employment discrimination against LGBTQ workers.

Interestingly, conservative Justice, Neil M. Gorsuch, wrote for the majority in the 6-to-3 ruling, stating:

“An employer who fires an individual merely for being gay or transgender defies the law.”

The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.

Justice Gorsuch wrote that it did.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,”

he wrote.

Gorsuch goes on to say,

“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The second was based on gender identity. In that case, Aimee Stephens, was a funeral director working near Detroit when she was fired in 2013 after announcing she would begin living as a woman. Sadly, Aimee died in May at the age of 59, not living to see her heroic contribution to this landmark decision. Her willingness to stand up to her employer now makes it it illegal for employers to terminate an employee based on gender identity.

In 27 states, there are no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations, according to Freedom For All Americans, a bipartisan campaign to protect LGBTQ people from discrimination. An employee in one of these states conceivably could be fired for being gay or transgender – and would have no guaranteed rights against it.

In 21 other states, plus the District of Columbia, employees had full protection from discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodation.

There are 8.1 million LGBTQ workers ages 16 and older in the USA, according to the institute. About 3.9 million of those work in those 27 states.

What About Discrimination in Small Businesses with Fewer than 15 Employees?

Unfortunately, Title VII of the Civil Rights Act only prohibits employment discrimination by employers with 15 or more employees.

Conceivably, a business with fewer than 15 employees in certain parts of Indiana could still legally fire somebody on the basis of sexual orientation or gender identity, unless there is a city or county ordinance prohibiting such discrimination.

Here, in the City of Indianapolis, we have had an ordinance that prohibits such discrimination since 2005. Other Indiana communities have laws to protect against discrimination based on sexual orientation, but not gender identity, so there still remains a patchwork of laws if your employer has fewer than 15 employees.

What Should Workers Do If They Are Fired Based on Sexual Orientation or Gender Identity?

If you’re fired on the basis of sexual orientation or gender identity, the first call you should make is to an attorney who knows and understands this area of the law. We can assist you with filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission or the local agency that enforces state or local anti-discrimination laws. This is the first step in filing a lawsuit in Federal or State Court against an employer who discriminates.

If you have questions about your rights as a member of the LGBTQ community, please call me for free, no obligation, consultation.

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.