Indiana Business Lawyer Blog

Indiana Employment Law and Indiana Corporate LawCorporation Mergers and Acquisitions May Subject Companies to I-9 Sanctions By: Jeremy L. Fetty

Mon, 06 Feb 2012 09:36:42 -0600

During a corporate merger or acquisition, companies should inspect the I-9 Employment Eligibility Verification Form policies of the soon-to-be merged or acquired company, as failure to do so may expose the company to fines and penalties from Immigration and Customs Enforcement (ICE). Since November 6, 1986, employers have been required to use the I-9 form in order to verify that each employee hired is authorized to work in the United States.

City Negligence for Property Damage from Sewer Defects UnlikelyBy: Jeremy L. Fetty

Tue, 31 Jan 2012 09:27:58 -0600

The Indiana Court of Appeals recently handed down two decisions regarding the liability of a city or municipality for damage caused to real and personal property as the result of a sewer defect. The cases examine when a city or municipality may be held liable for sewer malfunctions that cause property damage.

Indiana Creditor’s Laws New Indiana Case Clarifying Notices of Sheriff’s Sale By: Jeremy L. Fetty

Thu, 26 Jan 2012 09:19:45 -0600

In Surrisi v. Bremner, a 2011 Indiana Court of Appeals decision, the court held the Bill of Sale issued to the buyer (Bremner) invalid, as the Bill of Sale named business personal property which was not included in the Notice of Sheriff’s Sale.

Bremner, a creditor of the sellers (Surrisis), was the highest bidder at the Sheriff’s Sale and the sheriff issued a Bill of Sale that included business personal property that was not included in the Notice of Sale. The court noted that although the Agreed Judgment between the two parties stated the Sheriff’s Sale would include both real and personal property, the Notice of Sheriff’s Sale, praecipe of sale, and tax documentation, only listed the real property as being sold at the sale. Relying on a 2000 Colorado Court of Appeals decision, the court found that no notice of sale was given with respect to the business personal property, so such property could not have been sold at the sheriff’s sale. The court also stated that nothing in the settlement agreement prevented the business personal property from being sold at another sheriff’s sale, leading the court to further presume that only real property was to be sold at the Sheriff’s Sale in question.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

Attention: Parr Richey Obremskey Frandsen & Patterson LLP Business Law Clients

Mon, 09 Jan 2012 13:56:01 -0600

The National Labor Relations Board (NLRB) announced in a final rule in August a new poster requirement for both union and non-union employers that communicates employees’ rights to organize. Although originally effective November 14, 2011, the NLRB has delayed the implementation of this requirement until January 31, 2012 due to outcry from employer organizations.

Only “covered employers” must display the posters. Certain employers are exempt, such as agricultural, railroad, or airline employers and certain very small employers and retailers. If you are unsure of your requirement to post, please consult legal counsel. Noncompliance can be treated as an unfair labor charge.

To obtain a copy of the new poster, you may visit: https://www.nlrb.gov/poster

The poster should be placed in a conspicuous location where other notifications regarding workplace rights and employer rules are posted. In addition, a company that posts personnel policies, workplace notices, or similar information on an internal or external website should also include this poster in its online postings.

This article was written by Angela L. Gidley an associate in the law firm of Parr Richey Obremskey Frandsen & Patterson.

Pole Inspection Contracts -- Beware!

Thu, 05 Jan 2012 09:05:28 -0600

Many co-ops use outside companies for pole testing and inspection. These companies often propose a form agreement with “standard” terms. Pricing is sometimes addressed in a separate letter with the base agreement remaining in effect for years.

Beware of standard terms proposed by some companies. For example, the contract utilized by one prominent company requires the utility to give it written notice within thirty days of any incident resulting in the breakage of a pole. Also the utility is required to retain the pole in storage for inspection by the company. Should the notice not be given or the pole not be preserved and the inspection company would later be sued on some theory, the contract requires the utility to bear the company’s defense costs and any liability that might result.

Indiana Municipal Law - Clarification on the Requirements of a Public Lawsuit By: Jeremy L. Fetty

Tue, 06 Dec 2011 12:11:37 -0600

The Indiana Court of Appeals clarified the requirements necessary for a lawsuit to be considered a public lawsuit in Buse v. Trustees of the Luce Township Regional Sewer District, 953 N.E.2d 519 (Ind. Ct. App. 2011). In this case, a group of property owners filed suit against the Spencer County Sewer District to block it from laying a sewer line adjacent to the plaintiffs’ properties, which already had functioning septic tanks. The Sewer District argued that this lawsuit should be considered a public lawsuit under Indiana Code § 34-6-2-124. This statute was designed to end costly serial litigation against municipalities that could threaten to block nearly every proposed action of a municipality. The trial court found the plaintiffs’ lawsuit to be a public lawsuit since the allegations in the complaint directly or indirectly questioned the validity and construction of public improvements. This finding would have required the plaintiffs to post a surety bond in the amount of $9,000,000 (the amount of a grant the county received to defray construction costs) within ten days or the trial court’s order or the case would be dismissed.

Indiana Municipal Law - Update on the Specificity Required in Zoning DecisionsBy: Jeremy L. Fetty

Tue, 29 Nov 2011 10:37:45 -0600

The specificity requirements of Indiana zoning decisions were discussed in The Kroger Co. v. Plan Commission of Plainfield, 953 N.E.2d 536 (Ind. Ct. App. 2011). In that case, Kroger wanted to construct a gas station next to its retail store. Kroger submitted a zoning petition seeking approval to begin construction, but the Plan Commission denied Kroger’s petition. Kroger sought judicial review. Both parties filed motions for summary judgment, with the trial court granting the Plan Commission’s motion for summary judgment. Kroger appealed, arguing that the denial did not satisfy the specificity requirement of the Zoning Enabling Act and also arguing that the Commission’s findings were not sufficient to support the denial of Kroger’s petition to construct a gas station.

Clarification of the Administrative Employee Exemption of the FLSA

Fri, 04 Nov 2011 09:42:25 -0600

Recently in a Seventh Circuit Court of Appeals case, Verkuilen v. Mediabank, LLC, the court analyzed the administrative employee exemption to the Fair Labor Standards Act (“FLSA”). 646 F.3d 979 (7th Cir. 2011). Penny Verkuilen was an account manager for Mediabank, which “provides computer software to advertising agencies.” An account manager’s job is to “go out, understand [the customer’s requirement], build specifications, [and] understand the competency level of [the] customers.” Penny spent much of her time on the customers’ premises, training their staff on the software and answering any questions that came up.

We’re Watching: Employees May Be Lawfully Terminated for Facebook Comments

Thu, 27 Oct 2011 14:46:50 -0600

This past summer, the National Labor Relations Board (“NLRB”) issued a series of decisions regarding whether employees were unlawfully discharged for making comments about their employment on Facebook. In all of the cases, the NLRB determined that the employees’ comments were not protected under the National Labor Relations Act. In each case, the NLRB found that the employee’s comments were not considered “concerted activity,” a protected activity where employees may sustain an allegation of unlawful discharge if they are fired for talking with other employees seeking to induce some action regarding their employer.

In Martin House, an employee of a residential facility for homeless and mentally ill patients was fired after making comments on Facebook regarding patients. (Case 34-CA-12950) 2011 WL 3223853 (N.L.R.B.G.C. 2011) . While on duty, the employee had a short online “conversation” on Facebook with a friend. In it, the employee said of a patient, “I don’t know if shes laughing at me, with me or at her voices . . . I don’t need to restrain anyone, we have a great rapport . . . .” The employee was fired shortly after the employer was made aware of the comments, with the employer citing reasons of protecting patients from stigma and protecting their privacy. The NLRB said these comments were not “concerted activity” because the employee did not discuss her comments with co-workers. Co-workers also did not respond to her posts. She was “merely communicating . . . about what was happening on her shift.” For these reasons, NLRB determined she was not unlawfully discharged.

Attorney Kent Frandsen's golf achievements featured in USGA article

Tue, 27 Sep 2011 10:46:25 -0600

Parr Richey Obremskey Frandsen & Patterson attorney Kent Frandsen recently advanced to the second round of the 2011 USGA Senior Amateur golf championship. Prior to commencing his second round play, Michael Trostel/USGA, featured a great article on Mr. Frandsen and his various golf achievements throughout the years. Please click here to read the full article at the USGA website. (Image attributed to Steven Gibbons/USGA)

Indiana Employment Law: Are Your Workers Properly Classified? (Part 2)

Thu, 15 Sep 2011 09:30:05 -0600

Review of the IRS 20-Factor Test

The 20 factors identified by the IRS and reported in the publication Joint Committee on Taxation, Present Law and Background Relating to Worker Classification for Federal Tax Purposes (JCX-26-07), May 7, 2007 are as follows:

1. Instructions: If the person for whom the services are performed has the right to require compliance with instructions, this indicates employee status.

2. Training: Worker training (e.g., by requiring attendance at training sessions) indicates that the person for whom services are performed wants the services performed in a particular manner (which indicates employee status).

3. Integration: Integration of the worker’s services into the business operations of the person for whom services are performed is an indication of employee status.

4. Services rendered personally: If the services are required to be performed personally, this is an indication that the person for whom services are performed is interested in the methods used to accomplish the work (which indicates employee status).

5. Hiring, supervision, and paying assistants: If the person for whom services are performed hires, supervises or pays assistants, this generally indicates employee status. However, if the worker hires and supervises others under a contract pursuant to which the worker agrees to provide material and labor and is only responsible for the result, this indicates independent contractor status.

6. Continuing relationship: A continuing relationship between the worker and the person for whom the services are performed indicates employee status.

7. Set hours of work: The establishment of set hours for the worker indicates employee status.

8. Full time required: If the worker must devote substantially full time to the business of the person for whom services are performed, this indicates employee status. An independent contractor is free to work when and for whom he or she chooses.

9. Doing work on employer’s premises: If the work is performed on the premises of the person for whom the services are performed, this indicates employee status, especially if the work could be done elsewhere.

10. Order or sequence test: If a worker must perform services in the order or sequence set by the person for whom services are performed, that shows the worker is not free to follow his or her own pattern of work, and indicates employee status.

Indiana Employment Law: Are Your Workers Properly Classified?

Mon, 12 Sep 2011 08:53:52 -0600

Brief Overview of the Issue

Deficits are high, and taxes need to be higher to pay the high costs of government. But raising taxes is politically difficult. So, where can the IRS look to increase revenues? The “tax gap”.

The Tax Gap Misclassification Solution

On February 4, 2009, “TIGTA” (Treasury Inspector General for Tax Administration) issued a report and recommendation noting, among other things, that the IRS has not done a comprehensive study of work misclassification since 1984. In that year, the IRS had estimated that misclassified employees accounted for understatement of FICA, federal withholding, and unemployment taxes of approximately $1.6 billion. According to the TIGTA report, that underpayment is now estimated to be around $2.72 billion. This is one of the reasons that the TIGTA report recommended that the IRS should conduct a study (meaning audits):

Recommendation 2: The Deputy commissioner for Services and Enforcement should consider conducting a formal National Research Program reporting compliance study for employment taxes that includes measuring the impact of worker misclassification on the tax gap.

Indiana Employment Law: Indiana’s Immigration Bill is Now in Effect . . . Mostly

Wed, 13 Jul 2011 09:23:59 -0600

Effective July 1, 2011, Indiana’s much disputed Senate Bill 590 became law. This bill has been hotly contested since its inception for its harsh response to illegal immigrants in Indiana and those who employ them. Certain provisions are still being litigated in court. Although the bill has been watered down from its most extreme provisions, it still contains many changes to Indiana’s existing law. The hallmark of this Bill is the E-Verify Program, a program electronically verifying the work authorization status of newly hired employees. As of July 1, 2011, all state agencies, political subdivisions, businesses seeking more than a $1000 grant from a state agency or political subdivision, and all contractors and subcontractors entering into or renewing a public contract are required to enroll in and participate in this program for all new hires. Some businesses falling within the purview of participation in E-Verify also have to sign an affidavit stating they do not knowingly employ an unauthorized alien. Many also have to provide documentation of their participation in E-Verify. If businesses with public contracts do not comply with this new program and requirements, that contract will be terminated after thirty days, or as soon as is feasible, if this violation is not remedied. The business will then be liable for actual damages. The government may also file a civil action for reimbursement of unemployment insurance benefits paid to an employer that knowingly employed an unauthorized alien.

Indiana Utility Law: When Does a Company Become a Public Utility?

Wed, 29 Jun 2011 09:32:48 -0600

Indiana utility lawyers took note on June 9, 2011, when the Indiana Court of Appeals issued a decision in United States Steel Corporation versus Northern Indiana Public Service Company (NIPSCO) addressing the issue of when a company becomes a public utility.¹ The dispute arose after ArcelorMittal acquired property within U.S. Steel’s large-scale northern Indiana operation and began to purchase certain utilities from U.S. Steel, namely electricity and gas.

Indiana Municipal Law and Indiana Utility Law - Indiana Court of Appeals Affirms Ruling that Town Ordinance Regulating the Sale or Lease of Natural Resources was invalid. (Part 2)

Fri, 22 Apr 2011 09:14:42 -0600

Avon attempted to argue that Indiana Code §36-1-2-23 permits it to regulate the water in the Park because groundwater is a watercourse or body of water within the meaning of the statute. Indiana Code §36-9-1-10 states that a watercourse “includes, lakes, rivers, streams, and any other body of water.” Further, Avon argued that the Township and WCCD’s plan to sell the groundwater constituted a “business use” under Indiana Code §36-8-2-7, which authorizes “a unit [to]…regulate any business use of a water course.”