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What Defines Unpaid Wages?

What Defines Unpaid Wages?

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.

Indiana has two statutes, the Wage Claims Statute, Indiana Code §22-2-9, and the Wage Payment Statute, Indiana Code §22-2-5. The Wage Claims Statute is for employees that have either been terminated or are in a labor organization dispute. Individuals with a claim under the Wage Claims Statute, that is in excess of $6,000 must get approval from the Indiana Department of Labor to file a private suit against their employer. For claims between $30 and $6,000, the Indiana Department of Labor will collect your wages free of charge. If you have a claim for unpaid wages that is less than $6,000 a claim can be made by filling out the IDOL’s Online Wage Claim Form: https://www.in.gov/dol/2671.htm

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.”

St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002).

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.

Age Discrimination in the Workplace: A Growing Trend for Baby Boomers

Age Discrimination in the Workplace: A Growing Trend for Baby Boomers

In the next five years, approximately 25% of our workforce will be 55 years or older. For some people like Bruce Arians, a former Colts NFL football coach, jobs are still opening up (see recent news article here). But how are things going for the rest of our older workers? Are you an older professional that was just fired or handed a severance package?

Demographics show a large portion of the Baby Boomer generation is still working. Whether its because they need to work or because they want to work, many 50+ year olds are not retiring. Theoretically, our federal law protects employment discrimination against workers 40 years of age and older. The law is known as the Age Discrimination in Employment Act, or the “ADEA”. But not all employers follow the law, and it’s much tougher for older workers to find new jobs – let alone financially recover from an unexpected severance.

In Indianapolis, our attorneys see this scenario commonly unfold in the medical industry. Goodin Abernathy LLP attorneys are experienced with pharmaceutical and medical device representatives suddenly facing a “forced retirement.” Typical scenarios show the experienced reps are asked to train new, younger sales people. The trainees tag along, meet the customers and learn the ropes. Then, if they aren’t fired, the older rep’s territory just gets split up. Part of the territory is assigned to the younger worker, while the older rep’s compensation package does not change. This means the experienced worker just trained themselves into a pay cut. You can imagine what happens after a little more time when the younger worker learns the ropes: they’re handed both territories and the older worker is shown the door.

Other times the older, experienced worker gets pushed out or “harassed out” of their position. Their younger managers start building flimsy records of statistical violations. They say the older worker isn’t making enough sales calls; is not attending enough meetings; fails to use the company’s technology correctly, etc.

Behind the scenes, the company’s strategy is simple: replace the higher paid, experienced worker with cheaper labor offered by young workers. The older workers – who devoted their careers to improving the company’s interests – get cut loose by new or younger managers trying to make their own numbers look better.

Another typical scheme involves luring away experienced, older workers from competitors. After the older worker shares her book of business and discloses other proprietary information, the new company abruptly lets them go. The new company just wanted the work intel for its younger reps and never really planned to keep the new, older hire on board.

When companies plug younger workers into jobs and push out 40+ year old workers, the experienced workers should contact our Goodin Abernathy LLP attorneys for an ADEA evaluation.

Contact Goodin Abernathy LLP, and we will tell you how to look for signs of illegal ageism or age discrimination. Consult us and we will explain the legal process for an ADEA or EEOC claim with an eye towards enforcing your legal rights.

ADA and Dwarfism

What happens to whistleblowers and workers facing discrimination in the work place? Tricia Newbold, a dwarf, claims the White House is freezing her out of a job (see article here).

This story reminds me of one of the best cases, and clients, we’ve helped over the years. It involves an American with Disabilities Act claim and the Equal Employment Opportunity Commission (“EEOC”) – legal areas which Goodin Abernathy LLP is experienced in, litigating cases with earnest to represent our clients.

Our client, “B”, is an Achondroplasia Dwarf. Outside of being a dwarf, B had normal dreams and aspirations like the rest of us had at a young age. B came to us because while she was working at a major restaurant chain, a manager and co-workers discriminated against her. They held her back from a job promotion and occasionally made disparaging remarks about her physical stature. They thought it was funny – but the remarks were mean to B.

B started as a hostess and wanted to get promoted to serving tables. Waitresses made more than those in the hostess position. Although the position required different physical requirements, B was up for the challenge.

The problem was, the restaurant outright denied her requests to be a server. On top of it, they were callous about it. The employer did not take time to consider what our laws say about equal opportunity for all workers. And probably worse yet, they did not take the time to consider the moral issues involved with the situation.

The Americans with Disabilities Act (“ADA”) and its 2008 update, the ADA Amendments Act (“ADAAA”), provide legal protection for disabled workers in our country. Goodin Abernathy LLP submitted a Charge of Discrimination for B with the local EEOC office. When the EEOC gave us a “Right to Sue” letter, we filed a legal complaint against the employer in Federal Court.

We collected evidence in B’s case, showing the employer failed to reasonably communicate with her about the server’s position. Nor did they consider whether reasonable accommodations would have easily allowed B to perform the server’s job. On top of that, our investigation revealed the rude comments by staff and B’s supervisors.

The company’s attorneys fought and complained, but we did not give up. We did not expect a lot. We did not expect for B to retire on the case – but we did expect to win. B recovered financial compensation allowed under the law. And, we won, because as attorneys, we used the law and fought for somebody’s equal rights.

Contact attorney Chip Clark at Goodin Abernathy, LLP with any ADA or EEOC questions you have. Give us a chance to partner with you – fighting for the legal rights you morally deserve.

Need Help Protecting Your Professional Reputation?

Are you facing an embarrassing issue at work? Is there a problem that might hurt your reputation and even your professional license? Fortunately, we may be able to help.

Even if what happened wasn’t necessarily criminal, it can still damage or destroy your professional reputation. You may face discipline from a professional licensing body, or you may face difficulty securing new employment. The good news is that our professional employment lawyers here in Indianapolis help deserving clients minimize damage and keep their careers in tact.

What Kinds of Offenses Can Tarnish Your Professional Reputation?

There may be a number of different ways that you might get in trouble at work. You may have been caught sexting or watching pornography on the job. There may be issues with sending inappropriate emails on company servers. Even what you do in your personal life might create professional problems.

Perhaps you’ve been accused of stealing from the company. Maybe you’ve been accused of inappropriate behavior with a client. Maybe something as simple as failing to report a criminal conviction to a supervisor can land you in hot water.

If you’ve made a mistake at work, the employer might claim that the error reflects on your professional ability. You might fail to meet targets in a way that results in your dismissal. Insubordination or failing to follow regulations are other problems that might cause an issue with your professional license and reputation in the community.

We Can Help You Minimize the Damage to Your Reputation

We work with deserving clients in order to help them defend their character and minimize damage as much as possible. No matter where you’re at in the process, we can work with you in order to help you defend yourself and preserve your career. This is critical at all stages when you face an embarrassing work issue.

Negotiating with Your Employer

Even before the professional licensing agency becomes involved, we can help you minimize the situation and mitigate the circumstances. It may be as simple as working together in order to present evidence to the employer that shows your side of the story. There may be ways that we can ask the employer for documents or records that can help the employer to make sense of the situation.

From there, we work with the employer to negotiate a resolution that may protect you. Perhaps rather than terminating your employment, you can agree to complete education courses. If they absolutely insist on termination, we can help you negotiate favorable terms.

For example, you may work with the employer in order to accept your resignation rather than report you as fired for cause. This can be invaluable to securing your next employment. We might be able to negotiate another reason for your departure. We might work with the employer to reach a non-disclosure agreement so that they don’t discuss the matter with professional colleagues or prospective employers. Most importantly, they might agree to terminate you for a reason that isn’t going to be as damaging to your professional license.

Helping with Professional Licensing Issues

Even if your embarrassing issue comes to the attention of the professional licensing authority that oversees your work, all is not lost. There are ways that we can work with the licensing board in order to defend your career and license. In some cases, this means aggressively defending the charges against you. In other cases, it means negotiating for the best possible disposition.

For example, if you’re an attorney that faces an allegation of misappropriating client funds, we can negotiate with the bar for an appropriate resolution. Even if the association doesn’t agree to dismiss the allegations against you, they might agree to issue a warning rather than a suspension. That can mean the difference between staying in business or needing to close up shop.

How We Do It

Our passion for helping our clients get back to their lives is what drives us to give 100 percent in each case. We offer thorough, professional services without judgment. You’re going through a stressful time. We can deal with the stress on your behalf. Our team gets to the heart of the matter, and we make sure that we don’t miss details that can provide you a defense or mitigate your case.

Handling your case is about so much more than just knowing the laws and licensing rules. This type of case takes tact. It takes sensitivity and an eye for knowing how to approach the employer and the licensing authority.

No matter your licensing issue, we can help. Whether you’re a real estate agent, insurance professional, attorney, day care provider, health care professional, teacher or other licensed professional, we can help the licensing agency see why you’re an asset to the profession. Not only do we help the employer or licensing board understand the true nature of the allegations against you, but we help them understand why you’re an asset to your profession.

Contact Us

If you’re facing a potentially embarrassing professional issue, we invite you to contact us. Our team offers understanding and compassionate service aimed at helping you preserve your career and get back to life as normal as quickly as possible. Our consultations are free. Please contact us today to talk about your case.

How Best To Handle Discrimination in the Workplace

How Best To Handle Discrimination in the Workplace

Do you feel that you face discrimination in the workplace? Are you being bullied or pushed out of your job unfairly? A number of employees in Indiana, ranging from junior staff to those in the upper management find themselves in this situation.

Common Harassment Issues in the Workplace

While no two discrimination or harassment cases are exactly the same, there are certain common issues that can arise such as:

  • Hostile Work Environment – Is a supervisor or co-worker making your job unbearable? Just because the demands of a job are hard, does not mean that you are being harassed or discriminated against, or that your work environment is hostile. You must ask yourself if you are being treated differently because you are a member of a protected class. That is to say, are they doing this to me because of my gender, race, age, national origin, or because of a disability?
  • Unequal Pay –  Are you being paid less than your counterparts simply because of your gender? For example, are you a woman being paid less than your similarly situated male colleague for the same amount of work.
  • Unusual Work Demands – Is your employer asking you to do work that is not being demanded of your co-workers simply because of your race or national origin? This may be discrimination.

If you feel you are experiencing discrimination or harassment on the basis of your race, gender, national origin, sexual orientation, disability, age (over 40) or pregnancy, you should talk to an experienced employment law attorney immediately. There are laws that protect employees from this type of harassment and discrimination, and you should know and understand your rights.

Most companies encourage an open and inclusive work culture. However, many people are afraid to speak up or report discriminatory behavior for fear of being retaliated against. Federal laws also protect employees from retaliation if they speak truthfully and report abuses, or participate in an investigation.

Some examples of the many Federal and State laws that protect employees in Indiana include:

  • Title VII of the Civil Rights Act (1964)- This prohibits discrimination because of color, race, religion, national origin or sex;
  • The Age Discrimination in Employment Act (1967)(“ADEA”)- This act prohibits the age discrimination of individuals over 40;
  • Civil Service Reform Act (1978)- This act prohibits discrimination by any Federal employers on the basis of color, race, religion, national origin, age, sex, marital status, disability, sexual orientation, and political affiliation;
  • Sections 1981 through 1988 of Title 42 of the United States Code;
  • The Americans with Disabilities Act (1990)- The act prohibits discrimination against any qualified individuals with disabilities;
  • The Worker Adjustment and Retraining Notification Act;
    Indiana Age Discrimination Act, IC 22-9-2-1, et seq.;
  • Indiana Civil Rights Law, IC 22-9-1-1, et seq.;
  • Indiana Minimum Wage Law, IC 22-2-2-1, et seq., including the Indiana Equal Pay Act;
  • Indiana Employment Discrimination Against Disabled Persons Act, IC 22-9-5-1, et seq.;
  • Indiana State Wage Payment and Work Hours Laws, including IC 22-2-4-1 et seq., IC 22-2-5-1, et seq., and IC 22-2-9-1, et seq.;
  • Indiana Family Military Leave Law, IC 22-2-13-1, et seq.

Discrimination in the Workplace – Points to Consider

Every case is different, but if you feel that you are being discriminated against in your workplace, you must first follow your employer’s procedures to notify the employer and give them the opportunity to take corrective action. If that is not successful, then the next step may be filing a Charge of Discrimination with a Federal or State agency that enforces the existing labor laws allegedly being violated. Some of the vital points to consider are:

  • Know your rights- Make it a point to know your employer’s policies are on harassment, and discrimination, as well as their procedures for making a complaint. This will give you a clearer idea about whether your company is treating you unfairly.
  • Maintain records- Maintain a detailed record of emails, conversations and times as well as events related to your unfair treatment. This evidence may later be vital in proving your claim.
  • Seek advice from experts- An experienced Indiana discrimination lawyer will be able to provide a free phone consultation and can give you basic information about your rights and whether you actually have a case.
  • Don’t resign abruptly- While it can be very tempting to just walk out and then bring a case, you may waive potential claims if you just resign voluntarily. Always consult with an attorney and know what you may be giving up before you voluntarily leave your employment.
  • Act without delay- If your feel that you have been the victim of harassment or discrimination, or that you have been wrongfully terminated due to retaliation or discrimination, there are deadlines for making a claim. The time to file a Charge of Discrimination with the EEOC (Equal Employment Opportunity Commission) is usually 180 days from the date the last discrimination occurred. However, this deadline can be extended to 300 days if the charge is covered by a local/state anti-discrimination laws. In almost all cases, you are first required to file your Charge of Discrimination with the agency that enforces the applicable law before you can file a lawsuit. This process is known as “exhausting your administrative remedies.”
Discrimination Due to Special Needs

Discrimination Due to Special Needs

If an employer has discriminated against you because of your special needs, he or she is may be violating federal law as well as state and local laws.

In 1990, Congress passed a piece of civil rights legislation called the Americans With Disabilities Act (ADA). Title 1 of this legislation specifically prohibits workplace discrimination against individuals with disabilities. Such prohibitions apply to any business that has 15 or more employees on its payroll. The ADA also offers protection to individuals such as spouses or parents who may be subject to bias on the basis of a close relationship to a person with a disability.

Four other federal laws also specify protections for psychologically or physically challenged individuals:

The Rehabilitation Act

Section 501 of the Rehabilitation Act prohibits disability-related bias by federal employers and mandates affirmative action programs that will increase the number of employees with disabilities in federal workplaces.

The Workforce Innovation and Opportunity Act (WIOA)

Section 188 of the WIOA prohibits disability-related bias on the part of any employers who receive financial or programmatic assistance under the terms of the WIOA.

The Civil Service Reform Act (CSRA)

The CSRA contains language that stipulates against disability-related bias that targets both Civil Service employees and prospective employees.

Additionally, all 50 states have laws in place that prohibit workplace bias against individuals with disabilities though in some states, these laws only pertain to workplace discrimination on the part of public employers.

What Is a Disability?

The ADA doesn’t contain language that categorizes all the physical and psychological conditions that constitute disabilities. Instead, the ADA imposes a standard: If a condition has a negative effect on an individual’s ability to carry out the routine activities of daily life, then it constitutes a disability.

The ADA’s definition includes people who’ve been impaired in the past even though they may not be impaired when they’re employed or when they apply for employment. The ADA’s definition also includes people who are able to carry out major life activities but who are affected by a condition that is typically classified as a disability. Disabilities also include injuries that may prevent employees from working in their customary capacity for a limited amount of time.

Reasonable Accommodation

The ADA requires employers to make “reasonable accommodations” to either job duties or to the layout of a workplace that will enable an employee with special needs to do his or her job adequately. What might these accommodations reasonably include? Here are a few possibilities:

• Physical modifications such as raising or lowering the height of desks for people in wheelchairs or installing screen magnifiers on computers that are used by individuals with visual impairments.

• Moving a workstation closer to a restroom for a worker whose disability includes bladder or bowel control issues.

• Allowing a more flexible work schedule and use of leave time so that a worker can pursue medical treatments. This accommodation may also require granting additional amounts of unpaid leave time.

Under the ADA, however, employers are not required to make particular accommodations for physically disabled workers if those accommodations would impose “undue hardship.” The burden of proof will be on employers to prove that an accommodation an employee has asked for is too costly or too disruptive to be implemented. Both courts and the U.S. Equal Employment Opportunity Commission (EEOC) , which is the federal agency charged with enforcing ADA compliance, will look at a variety of factors here, including potential tax credits and the disabled employee’s own willingness to supply the accommodation or to pay for its costs.

Workplace Harassment

Harassment is considered to be a type of bias whether or not an individual is affected by a disability. The ADA has language that prohibits harassment as does the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

In its broadest sense, harassment is any unwelcome conduct that’s instigated by an individual’s race, color, sex, age, religion, place of national origin or disability. However, not every offensive remark constitutes unlawful harassment. In order to meet that standard, the offensive conduct must be a condition of continuing employment, or it must also create a workplace that a “reasonable person” would consider hostile or intimidating.

The harassing individual can be anyone who is connected with a workplace, including a company’s owner, its managers, its employees, its independent contractors or even individuals who are not employees as might be the case with a vendor who delivers inventory on a regular basis. A harassment victim doesn’t have to be the individual who’s actually subject to unpleasant behavior, either; he or she can be someone who overhears the harassment and is deeply affected by it.

Employers are liable for harassment on the part of employees over whom employers have control. They’re also liable for harassing behaviors on the part of supervisors particularly if that harassment has negative implications for employment unless employers can prove either that they tried to correct the harassing behaviors or that the employee reporting the harassment did not take advantage of corrective opportunities offered by the employer.

Protect Your Rights

If you’re experiencing an unfair workplace situation that’s related to your disability, you have legal rights, and an experienced attorney can help you protect those rights. You are looking at tight statutes of limitations, so it’s important to contact a lawyer as soon as possible. In most instances, you will need to file a charge with the EEOC within 180 calendar days of the time you were refused accommodation or were subjected to harassment. (If you’re a federal employee, that statute of limitation is only 45 days.)

A discrimination attorney can evaluate your situation and help you decide whether or not your case is worth pursuing. These claims can be difficult to prove without concrete evidence of an employer’s bias, so it’s important to work with a legal professional who can help you compile the necessary evidence. An attorney can help you negotiate with your employer to get the accommodations that are your right. In worst-case situations, if your employer isn’t willing to make the accommodations that would help you keep your job, a lawyer may be able to help you receive compensation for your employer’s unlawful actions.