Oftentimes when employers have a lawsuit filed against them it is for a harassment or discrimination case with an employee.  However, it is not so much discrimination and sexual harassment as one may assume, but instead stems from violations of state and federal wage and hour laws, such as:* bad record keeping* poor or non-existent company policies in place* improper procedures* bad payroll practices* incorrect time reportingBasically, “time is money”, and many good employees all over the nation are not getting their fair share.    The trend developing shows many employees are not being paid for off-the-clock work hours, and many have even been misclassified as not being eligible for overtime.For example, if we look at 2005, there were 4,039 federal wage and hour suits filed, 10% more than the 3,671 filed in 2004, according to the Administrative Office of the U.S. Courts.    In 2006, the number of federal wage and hour cases filed jumped another 4.2 percent to 4,207.Here is what Gerald L. Maatman Jr, a labor attorney had to say:”It’s probably the leading exposure right now for employers in the U.S., even more than employment discrimination,” says Gerald L. Maatman Jr., a labor attorney with Seyfarth Shaw in Chicago, who estimates that five to seven wage and hour class-action lawsuits are brought every day in Cook County, Illinois.If you feel like your employer is being unfair with your wages, non paid overtime, bad procedures or payroll taxes, bad time reporting, or anything similar or related, help is very easy to attain.   State and Federal wage and hour laws are in place for your protection.    Please don’t be afraid to exercise your rights, because there are those who are willing to fight right alongside you.  Contact our Carmel, Indiana law firm for your wage and hour disputes.

Author Phil Sever
Posted in Employment Law
Tags employment law, overtime, wage and hour

1. Confront the Harasser and inform him or her that their conduct is inappropriate.  Make it clear that you find the behavior offensive. 
2. Keep a diary of all incidents.  Record the date, time and place where the offensive behavior occurred and the people that were present. 
3. File a complaint with your supervisor or human resources department.  Make sure to follow any reporting guidelines set forth by your employer.  If your supervisor is your harasser you should report your complaint to human resources or another supervisor. Make sure you properly document your complaint.  It is a good idea to write out your complaint, date your complaint and retain a copy for your records.  If you have a meeting regarding your complaint be sure to take notes and follow up with your supervisor or human resources contact to make sure actions are taken in regards to your complaint. 
4. If necessary contact an attorney.  There are important timelines that you must be aware of to bring any action for sexual harassment.  An attorney with experience in sexual harassment cases can provide the correct evaluation of your case and insure that the proper deadlines are met.

Author Phil Sever
Posted in Employment Law
Tags discrimination, employment, inappropriate conduct, sexual harassment

The debate has raged for years over what constitutes an Employee, or an Independent contractor.  There was a recent news report that shipping giant “Fedex”, is in a dispute with the IRS over categorizing their drivers as “independent contractors” and not “employees”.

Many companies like the benefits that come with independent contractors, as they do not have to pay out things like social security, taxes, overhead expenses, and it’s also a way to prevent union organizing.

Misclassification is not a new thing.  Some employers do it on purpose, and some do not.  What is important to realize, is that laws are in place, and they must be followed.  If contract employees are misclassified, it can result in a loss of wages, and can result in unwanted scrutiny, and not to mention, possible future legal fees and court appearances.

You need to know exactly where you stand.  Your employer must be very clear to you on your job duties, and he/she must make sure that the jobs you perform fall within the proper guidelines for either an employee or independent contractor.     

It is recommended that you do a bit of research, and be absolutely certain that your are classified in the correct category with your employer.  However, if you feel that you are being unfairly treated at your place of employment, contact our Employment Law specialist to identify possible legal action.

Author Phil Sever
Posted in Employment Law
Tags employment law, independent contractor, lost benefits, missed wages

CHINSTrial Court May Lose Jurisdiction over CHINS Proceeding if Fails to Conduct Fact-Finding Hearing within Statutorily-Prescribed Time Limit for no Legitimate ReasonIn the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services, Appellate Panel: Judges Bradford, Barnes, and Crone. Appeal from the Hamilton County Circuit Court, Judith S. Proffitt, Judge. Hamilton County Department of Child Services (“HCDCS”) filed petitions on December 7, 2006, alleging that A.G. and M.G. were children in need of services (“CHINS”). At the initial hearing on January 29, 2007, Father denied the allegations brought against him by HCDCS. The trial court proceeded by setting a fact-finding hearing for March 1, 2007.On March 1, 2007, the court reset the hearing for April 23, 2007. On April 23, 2007, at the request of Father, who had just retained Tonny D. Storey of Sever-Storey LLP as counsel, the trial court reset the hearing for July 16, 2007. On May 11, 2007, however, the trial court continued the hearing to August 20, 2007. And finally, on August 20, 2007, the court reset the hearing for either October 2 or October 29, 2007.Mr. Storey filed a motion on behalf of Father to dismiss the CHINS petitions on August 23, 2007, arguing that the trial court now lacked subject matter jurisdiction because it had failed to conduct its fact-finding hearing within the time limit prescribed in Indiana Code 31-34-11-1. The Code states in relevant part that the court “shall complete a fact-finding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services . . .” Mr. Storey asserted that “shall” connoted a mandatory instruction, one which the trial court had failed to follow. And thus, Mr. Storey argued that the court lacked subject matter jurisdiction.In response, the Court of Appeals cited to its recent decision in Parmeter v. Cass County Dept. of Child Services, in which the court held that “shall” may, in certain cases, “be construed as directory instead of mandatory ‘to prevent the defect of the legislative intent.’” 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (quoting In re Middlefork Watershead Conservatory Dist., 508 N.E.2d 574, 578 (Ind. Ct. App. 1987)). However, the Court distinguished Parmeter from the case in front of it. Unlike Parmeter, Father’s record did not contain any legitimate reasons why the fact-finding hearing was not held within the requisite time limits.Subsequently, the Court of Appeals reversed the trial court’s judgment, holding that because the trial court failed to conduct a fact-finding hearing within the time limit prescribed by statute, it lacked subject matter jurisdiction over the CHINS cases.

Author Phil
Posted in Family Law
Tags A.G. and M.G., Carmel Law Offices, Child Services, Hamilton County, Hamilton County Department of Child Services, Trial Court

Hamilton County Department of Child Services

Trial Court May Lose Jurisdiction over CHINS Proceeding if Fails to Conduct Fact-Finding Hearing within Statutorily-Prescribed Time Limit for no Legitimate Reason

In the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services, Appellate Panel: Judges Bradford, Barnes, and Crone. Appeal from the Hamilton County Circuit Court, Judith S. Proffitt, Judge.

Hamilton County Department of Child Services (“HCDCS”) filed petitions on December 7, 2006, alleging that A.G. and M.G. were children in need of services (“CHINS”). At the initial hearing on January 29, 2007, Father denied the allegations brought against him by HCDCS. The trial court proceeded by setting a fact-finding hearing for March 1, 2007.

On March 1, 2007, the court reset the hearing for April 23, 2007. On April 23, 2007, at the request of Father, who had just retained Tonny D. Storey of Sever-Storey LLP as counsel, the trial court reset the hearing for July 16, 2007. On May 11, 2007, however, the trial court continued the hearing to August 20, 2007. And finally, on August 20, 2007, the court reset the hearing for either October 2 or October 29, 2007.

Mr. Storey filed a motion on behalf of Father to dismiss the CHINS petitions on August 23, 2007, arguing that the trial court now lacked subject matter jurisdiction because it had failed to conduct its fact-finding hearing within the time limit prescribed in Indiana Code 31-34-11-1. The Code states in relevant part that the court “shall complete a fact-finding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services . . .” Mr. Storey asserted that “shall” connoted a mandatory instruction, one which the trial court had failed to follow. And thus, Mr. Storey argued that the court lacked subject matter jurisdiction.

In response, the Court of Appeals cited to its recent decision in Parmeter v. Cass County Dept. of Child Services, in which the court held that “shall” may, in certain cases, “be construed as directory instead of mandatory ‘to prevent the defect of the legislative intent.’” 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (quoting In re Middlefork Watershead Conservatory Dist., 508 N.E.2d 574, 578 (Ind. Ct. App. 1987)). However, the Court distinguished Parmeter from the case in front of it. Unlike Parmeter, Father’s record did not contain any legitimate reasons why the fact-finding hearing was not held within the requisite time limits.

Subsequently, the Court of Appeals reversed the trial court’s judgment, holding that because the trial court failed to conduct a fact-finding hearing within the time limit prescribed by statute, it lacked subject matter jurisdiction over the CHINS cases.

Author Phil
Posted in Family Law

Wage and Hour Litigation produces more “Workplace Class Action Lawsuits” than any other in 2007.

An annual report by a Chicago based law firm, Seyfarth Shaw, recommends that class action litigation is expected to continue heavily in 2008.

In 2007, the 10 largest class action wage and hour settlements totaled over $319.3 million dollars!    This is the first time in 5 years that the top 10 wage and hour and ERISA class-action settlements outpaced employee discrimination cases in overall values.

To provide background on some of these major companies end up paying out, here is a list of wage and hour settlements from 2006:

1.  Citigroup Global Markets – $98 Million Dollars

2.  UBS Financial Services -  $89 Million Dollars

3.  United Parcel Service (UPS) – $87 Million Dollars

4.  International Business Machines (IBM) – $65 Million Dollars

5.  Morgan Stanley – $42.5 Million Dollars

6.  Merrill Lynch – $37 Million Dollars

7.  24 Hour Fitness – $38 Million Dollars

8.  Siebel Systems -  $27.5 Million Dollars

9.  Sears and Roebuck – $15 Million Dollars

10.  Electronic Arts (EA) – $14.9 Million Dollars

The Fair Labor Standards Act was put in place to protect people in the workplace.  If you want more information on wage and hour filings, or if you feel like you have been discriminated against in the workplace, please don’t hesitate to our Wage and Hour Discrimination in the Carmel, Indiana law firm for more information.

Author Phil Sever
Posted in Employment Law
Tags employment law, wage and hour disputes