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When is a Person an Employee of Another?
Opinions |
2011/07/18 09:28
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.
Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another |
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Stay away from energy drinks, doctors say
Opinions |
2011/05/28 13:40
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In a new report, a large group of American doctors urge kids and teens to avoid energy drinks and only consume sports drinks in limited amount.
The recommendations come in the wake of a national debate over energy drinks, which experts fear may have side effects.
"Children never need energy drinks," said Dr. Holly Benjamin, of the American Academy of Pediatrics, who worked on the new report. "They contain caffeine and other stimulant substances that aren't nutritional, so you don't need them."
And kids might be more vulnerable to the contents of energy drinks than grownups.
"If you drink them on a regular basis, it stresses the body," Benjamin told Reuters Health. "You don't really want to stress the body of a person that's growing."
For the new recommendations, published in the journal Pediatrics, researchers went through earlier studies and reports on both energy drinks and sports drinks, which don't contain any stimulants.
They note that energy drinks contain a jumble of ingredients -- including vitamins and herbal extracts -- with possible side effects that aren't always well understood.
While there aren't many documented cases of harm directly linked to the beverages, stimulants can disturb the heart's rhythm and may lead to seizures in very rare cases, Benjamin said.
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Class action - Class Action Lawsuits
Opinions |
2010/09/08 07:29
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In law, a class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued.
This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. However, in several European countries with civil law different from the English common law principle (which is used by U.S. courts), changes have been made in recent years that allow consumer organizations to bring claims on behalf of large groups of consumers.
U.S. federal class actions
Class action lawsuits may be brought in federal court if the claim arises under federal law, or if the claim falls under 28 USCA § 1332 (d). Under § 1332 (d) the federal district courts have original jurisdiction over any civil action where the amount in controversy exceeds $5,000,000 and either 1. any member of a class of plaintiffs is a citizen of a State different from any defendant; 2. any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or 3. any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state. Nationwide plaintiff classes are possible, but such suits must have a commonality of issues across state lines. This may be difficult if the civil law in the various states have significant differences.
State class actions
Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions.[5] Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions.
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Save housing market by letting it crash?
Opinions |
2010/09/07 10:39
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The unexpectedly deep plunge in home sales this summer is likely to force the Obama administration to choose between future homeowners and current ones, a predicament officials had been eager to avoid. Over the last 18 months, the administration has rolled out just about every program it could think of to prop up the ailing housing market, using tax credits, mortgage modification programs, low interest rates, government-backed loans and other assistance intended to keep values up and delinquent borrowers out of foreclosure. The goal was to stabilize the market until a resurgent economy created new households that demanded places to live. As the economy again sputters and potential buyers flee — July housing sales sank 26 percent from July 2009 — there is a growing sense of exhaustion with government intervention. Some economists and analysts are now urging a dose of shock therapy that would greatly shift the benefits to future homeowners: Let the housing market crash. When prices are lower, these experts argue, buyers will pour in, creating the elusive stability the government has spent billions upon billions trying to achieve. “Housing needs to go back to reasonable levels,” said Anthony B. Sanders, a professor of real estate finance at George Mason University. “If we keep trying to stimulate the market, that’s the definition of insanity.” The further the market descends, however, the more miserable one group — important both politically and economically — will be: the tens of millions of homeowners who have already seen their home values drop an average of 30 percent. The poorer these owners feel, the less likely they will indulge in the sort of consumer spending the economy needs to recover. If they see an identical house down the street going for half what they owe, the temptation to default might be irresistible. That could make the market’s current malaise seem minor.
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S&P revises insurer WellCare's outlook to 'stable'
Opinions |
2010/08/11 14:25
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Standard & Poor's Ratings Services revised its outlook on WellCare Health Plans Inc. to "stable" from "positive" to reflect a potential for reduced financial flexibility. The ratings service said Tuesday that WellCare has resolved securities class action and civil lawsuits and will pay a total of $337.5 million over the next several years. These payments create the potential for "reduced liquidity and financial flexibility," S&P credit analyst Hema Singh said in a statement. "The stable outlook reflects our expectation for sustained business and operating performance, which could improve the company's creditworthiness given the various resolutions related to past accounting investigations," the statement said. S&P said WellCare has a relatively stable business profile and stabilizing operating performance. But it also noted the insurer's revenue is concentrated in government-sponsored business and comes with a risk for regulatory or legislative intervention. S&P also said Tuesday it affirmed its "B" counterparty credit rating on the company. |
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Investment Fraud Litigation |
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Securities fraud, also known as stock fraud and investment fraud, is a practice that induces investors to make purchase or sale decisions on the basis of false information, frequently resulting in losses, in violation of the securities laws. Securities Arbitration. Generally speaking, securities fraud consists of deceptive practices in the stock and commodity markets, and occurs when investors are enticed to part with their money based on untrue statements.
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