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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.

Business Interruption During COVID-19 & Commercial Insurance

Business Interruption During COVID-19 & Commercial Insurance

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.

If you need legal assistance in these matters, please contact us for a free initial legal consultation.

MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

What is the FFCRA and Do I qualify?What is the FFCRA and Do I qualify?

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.

House Bill 1070 – Distracted Driving

House Bill 1070 – Distracted Driving

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.

If you or a loved one have been injured or killed by a distracted driver, it is important to know your rights, and to preserve important evidence to support your claim. Call us for a free consultation.

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.