Jim Browne: Hey, welcome to Goodin Abernathy. I’m attorney Jim Browne. We have a new member to our group, Garrett Lewis. He is a young attorney, and I thought we would spend a little time with him so you get to know who he is and what he can do for you. Come on in, Garrett.
Garrett Lewis: Alright, glad to be here Jim.
Jim Browne: Where are you from, Garrett?
Garrett Lewis: So, I’m actually from the South Bend area. I practiced there for a couple years before moving down here.
Jim Browne: What time of law did you focus on?
Garrett Lewis: We did Real Estate; we did Torts, which is contracts, defamation, things like that; and intellectual property, which is sort of copyrights, trademarks and patents.
Jim Browne: Do you have a typical client that you helped with the intellectual property?
Garrett Lewis: Yea, we dealt with small businesses. We had a few global businesses that we worked with and a lot of individual clients with patents and trademarks.
Jim Browne: What about people with inventions?
Garrett Lewis: All, all the time.
Jim Browne: Awesome.
Garrett Lewis: Yea, some that we knew weren’t going to anywhere right out of the gate and some that where very successful.
Jim Browne: Well, what’s that? I mean is that employment law type of work?
Garrett Lewis: Yea predominantly. Yep.
Jim Browne: And you are helping clients – individuals with their questions about discrimination? Tell us about that for a second.
Garrett Lewis: Yeah, so it sort of depends – when it comes to the ADA – businesses, for example, have legal obligation to provide reasonable accommodations and….
Jim Browne: so, there are seven core areas – age, race, religion, sexual discrimination, physical disabilities – those are things that you’re focusing on?
Garrett Lewis: Correct
Jim Browne: Great. You’ve already had a jury trial in that area… and what court was it in?
Garrett Lewis: So that was actually in the southern district in the…
Jim Browne: A federal court?
Garrett Lewis: A federal court, yea.
Jim Browne: And that trial, what was it about?
Garrett Lewis: So, that case was about a woman who was working at a grocery store for about 12 years and because of her chronic conditions and disabilities, she needed to be able to use a chair, as necessary.
Jim Browne: And the new employer said “No, you can’t use the chair.”
Garrett Lewis: That’s exactly right.
Jim Browne: So, it’s something probably a pretty easy fix.
Garrett Lewis: It was a very easy fix.
Jim Browne: You had a nice result with that jury trial?
Garrett Lewis: We did.
Jim Browne: You where able to learn some things.
Garrett Lewis: Yes.
Jim Browne: Give me one thing that stood out to you about that process.
Garrett Lewis: Well, first thing is you know maybe as a last resort everybody paid attention on the jury, which was nice – and whereas outside of the court room, Covid has sort of made remote working a little bit more convenient, inside the courtroom it’s made it much more of a challenge.
Jim Browne: I understand, so you’re preparing and you’re going to teach us old guys what to do about those technological challenges right?
Garrett Lewis: Yep.
Jim Browne: Well, I’m glad you’re on board Garrett. If you have questions about any of those areas of law please call us at Goodin Abernathy. A lot of your questions can be answered by phone, and we really care about the quality and responsiveness of our work, so please call us at 317-843-2606. You’ll get in touch with whichever attorney probably best suits the area of law you’re looking for, and we appreciate you tuning in to Goodin Abernathy.
It is December 17, 2020, and this week was the beginning of vaccine distribution in the United States.
Many people are asking, “Can the government or my employer require me to get the Covid-19 Vaccine?”
The simple answer is YES, but the likelihood of that happening is going to depend on a lot of factors, and it is not likely that the FEDERAL government would issue such a mandate.
Historically, states have had the right to mandate vaccines in order to ensure safety of the public. However, experts believe that it is very unlikely it will happen.
What is more likely is that employers and states will condition return or access to workplaces, public schools and universities upon getting the vaccine. Currently, all 50 states and Washington DC have laws requiring certain vaccines for students, but there are exceptions for personal, moral or other beliefs.
The industries most likely to mandate vaccines are going to be those most at risk for contracting the disease, such as those who work in HEALTHCARE, EDUCATION, PUBLIC SAFETY. Another important factor will be: AVAILABILITY OF VACCINE.
Currently, the available Coronavirus vaccines have been given Emergency Use Authorization (EUA) by the FDA. By the time the vaccines receive full FDA approval, which could take months. A lot will depend on how widespread the current vaccine has been distributed.
It is not clear if employers could legally mandate a vaccine that is only approved for Emergency Use. However, it would be very unusual to mandate a vaccine that has not been fully licensed and approved by the FDA. Right now, the consensus seems to be to encourage as many people as possible to voluntarily receive the vaccine. Assuming large numbers of people get vaccinated, there is a much less likely chance that there will be mandates by states or employers.
On the other hand, once the vaccine is approved by the FDA, if the number of people vaccinated is still too low to be effective, AND there is an available supply of the vaccine, we should probably expect to see some mandates.
As with any vaccine, there will be exceptions to those mandates; for example: pregnant women, people with disabilities, or those who hold deeply-rooted religious convictions.
So, what does that mean for you? To be vaccinated is a personal decision for each of us. I can tell you that I will be volunteering to get the vaccine as soon as it becomes available, and I look forward to putting an end to this deadly disease.
If you have questions about the vaccine as it relates to your employment, please feel free to contact me, Chip Clark, for a free consultation.
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:
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:
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.
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,”
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.
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.
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.