Currently, in a facility with a union, that union may designate an individual to accompany an OSHA inspector around the facility during an inspection.  As it pertains to non-union facilities, however, a number of employees may be consulted with respect to the inspection.  Those same employees may designate a representative on their behalf to accompany the inspector, but that has generally been a fellow employee.  In conjunction with this, there is some discretion on behalf of the OSHA inspector to allow a non-employee representative.  Apparently, under this most recent Interpretive Letter, this non-employee representative may be a union representative.

To read the full text of the OSHA Interpretive Letter on the DOL website, please click here.

Jake Fulcher

Jake Fulcher, a Partner at Kahn, Dees, Donovan & Kahn, LLP, is a member of the Labor & Employment Law Practice Team.  Jake represents a broad base of employers, including both private and public employers located in the U.S. and abroad, in all aspects of labor and employment law.  For guidance related to the referenced OSHA Interpretive Letter or any area of Labor & Employment Law, contact Jake at (812) 423-3183 or JFulcher@KDDK.com, or contact any member of the KDDK Labor & Employment Law Practice Team.

While inheritance taxes have been one important reason for people to consider estate planning, the repeal does not change the need for all individuals to have an estate plan in place and up to date.  Implementing a Last Will and Testament or a Trust can ensure that your assets transfer to the individuals and/or charities you choose, in the manner you desire.

About the Author

Shannon Frank

Shannon Frank, a Partner at Evansville law firm Kahn, Dees, Donovan & Kahn, LLP, has more than 20 years’ experience in the practice of business law, construction law, estate planning and probate administration, health care law, and real estate law.  Shannon prides herself in giving exceptional service to her clients, recognizing that relationships with clients play a significant and essential role in providing tailored and comprehensive legal advice. 

For more information on estate planning or Indiana’s repeal of inheritance taxes, contact Shannon Frank at (812) 423-3183 or SFrank@KDDK.com, or contact any member of the KDDK Estate Planning and Probate Administration Practice Team.

In January 2012, President Obama made a series of controversial appointments to the NLRB, purportedly while the Senate was in recess. Opponents to the appointments argued that the Senate was meeting on a pro forma basis at the time of the appointments and, therefore, was not technically in recess.  Proponents pointed to the fact that appointments had been made under similar circumstances in the past.

Faced with questions regarding the legitimacy of actions taken by the NLRB following the controversial appointments, in January 2013, the U.S. Court of Appeals for the District of Columbia Circuit invalidated the President’s appointment of all three of the Board Members and ruled that the Board lacked quorum to act.  Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).  In response, on April 25, 2013, the Obama administration petitioned the Supreme Court to review Noel Canning.  To date, the Supreme Court has not decided if it will hear the case.  Given these developments, employers have been left to question the extent to which the Noel Canning decision may limit the Board’s activity while these issues are resolved through the appellate process.

The NLRB’s answer?  Not at all.

In Bloomingdale’s, Inc. and Fatemeh Johnmohammadi, Case No.: 31-CA-071281, the Board alleged the employer violated Section 8(a)(1) of the National Labor Relations Act.  Citing Noel Canning, the employer moved to dismiss the complaint and argued that the Board did not have quorum and lacked the authority to proceed.  On April 30, 2013, the Board issued its order rejecting the employer’s argument and denying its motion to dismiss.  While it recognized Noel Canning held that the NLRB lacked quorum to act, the NLRB pointed to rulings issued by at least three other courts of appeals, including the Second Circuit, Ninth Circuit, and Eleventh Circuit, that conflict with the D.C. Circuit’s rationale.  Noting that the issues of quorum and authority to act remain unresolved in ongoing litigation, the NLRB stated that until there is a “definitive resolution” – presumably achieved through the courts – it remains charged with fulfilling its responsibilities under the NLRA.

In other words, despite Noel Canning, it looks like the Board is taking the position that it is business as usual.

Josh Gessling

Joshua B. Gessling, an attorney at Kahn, Dees, Donovan & Kahn, LLP, assists employers in a broad range of labor and employment law matters, and provides litigation and trial services for KDDK clients. Josh also utilizes his background in international law to assist businesses with operations abroad in corporate compliance and workforce management issues.

For guidance on how Noel Canning and the Bloomingdale’s decisions may impact your company, contact Josh at (812) 423-3183 or JGessling@KDDK.com, or contact any member of the KDDK Labor and Employment Law Practice Team.

The Indiana Court of Appeals has held that, for worker’s compensation purposes, risks incidental to employment fall into three categories:

1. Risks distinctly associated with employment;
2. Risks personal to the claimant; and
3. Risks of neither distinctly employment nor distinctly personal in character.

Risks that are distinctly associated with employment and risks of neither distinctly employment nor distinctly personal in character are generally covered under the Act.

Risks personal to the claimant, those caused by a pre-existing illness or condition unrelated to employment, are not compensable under the Act.

Stephen S. Lavallo, Partner

Stephen S. Lavallo, a partner at Evansville law firm Kahn, Dees, Donovan & Kahn, LLP, has more than 25 years’ experience in the practice of worker’s compensation defense, business, real estate, and estate planning and administration law; and is a certified civil mediator.  For more information Indiana’s Worker’s Compensation Act or any similar area of law, contact Steve at (812) 423-3183 or SLavallo@KDDK.com, or contact any member of the KDDK Worker’s Compensation Defense Practice Team.

The Situation

In Feitler v. Springfield Enterprises, landowners hired a general contractor to build a home on their property.  The general contractor hired several subcontractors to complete certain portions of the construction work.  In the midst of the project, the general contractor ceased business operations, notified the owners that it would not complete the home, and notified the subcontractors that it would not make any further payments.

The general contractor’s cessation of operations set off a flurry of legal maneuvers under the Mechanic’s Lien Statute.

Mechanic’s Lien Statute Provisions

The Mechanic’s Lien Statute provides that anyone who performs construction work is entitled to a lien on the property on which the work was performed.  To acquire a valid lien on a single-family dwelling, the lien must be recorded within 60 days of the last work performed or material supplied.

Residential subcontractors, i.e. those contractors who do not have a contract directly with the homeowner, must also record a pre-lien notice within 30 days of the first work performed or material supplied.  The purpose of the pre-lien notice is to make homeowners aware of all entities that have performed work and that may have the right to assert liens.

Homeowners may nonetheless avoid the threat of subcontractor mechanic’s liens if the written agreement with the general contractor prohibits mechanic’s liens and the agreement is recorded, thereby notifying any subcontractors that they do not have any mechanic’s lien rights.

Finally, to the extent that owners have not paid general contractors all amounts due, subcontractors may hold liens on any such unpaid amounts.  This lien is known as a Personal Liability Notice.

Which Subs Recovered Payments?

In Feitler, one subcontractor succeeded in recovering payment from the owners while several others failed.  After the general contractor ceased work, the cabinetry subcontractor smartly negotiated a separate agreement directly with the owners in which the owners guaranteed payment.  After performing its work, the cabinetry subcontractor recorded its mechanic’s lien without first recording a pre-lien notice.  The owners did not pay
and argued that the failure to record the pre-lien notice voided the mechanic’s lien.

The Court of Appeals initially agreed and ruled for the owners.  But after the cabinetry subcontractor pointed out that the Statute requires the pre-lien notice only when there is not a contract directly with the owner, the Court reversed itself by ruling that the cabinetry subcontractor was not required to record a pre-lien notice and the owners must pay for the cabinets.

Several other subcontractors did record pre-lien notices before recording their mechanic’s liens, but did not negotiate a contract directly with the owners.  Consequently, because the contract between the owners and the general contractor prohibited mechanic’s liens, the other subcontractor’s mechanic’s liens were invalid.

The other subcontractors also sent Personal Liability Notices to the owners in an attempt to recover any funds that the owners had not yet paid to the general contractor.  The Court of Appeals determined that the evidence was inconclusive regarding whether the owners had paid the general contractor in full.  Accordingly, the Court ruled that a trial must be held on this issue.

Contractors Take Notice

Contractors should take notice that even three appellate judges in the Feitler case didn’t get the language of the Mechanic’s Lien Statute right on their first try.  Feitler serves as a warning to closely review the facts of each case and the provisions of the Mechanic’s Lien Statute when there is a possibility of non-payment for a construction project.

Steven S. Hoar, Partner

Steve Hoar, a partner at Kahn, Dees, Donovan & Kahn, LLP, is a litigator focusing on business disputes.  He has represented clients in construction cases that have been resolved through arbitration and through the courts, including oral argument before the Indiana Supreme Court.  Steve has also handled thousands of matters in which he enforces payment using legal tools such as liens, judgments, and garnishments. 

For more information about Indiana’s Mechanic’s Lien Statute or any area of construction law, contact Steve at (812) 423-3183 or SHoar@KDDK.com, or contact any member of the KDDK Construction Law Practice Team.

In Morkoetter v. Sonoco Products Co., Lozano, R., the employee, alleged that he informed his employer of his disability and plans to take FMLA leave prior to becoming eligible. The employee further alleged that approximately five weeks prior to becoming eligible for FMLA leave, but after he provided notice of the need for future leave, the employer terminated his employment. The employee claimed his termination was retaliation for his plans to take FMLA leave after the one year anniversary of his hiring.

The employee filed a lawsuit against the employer and claimed violations of the FMLA. The employer moved to dismiss the claims. The employer argued that the employee was not an “eligible employee” by his own admission, because he had not worked for the employer for at least twelve months at the time he informed the employer of his need for FMLA leave in the future.

The District Court denied the employer’s motion to dismiss the FMLA claim, holding that a pre-eligibility request for post-eligibility leave is protected by the FMLA. Otherwise, the District Court reasoned, the aims of the FMLA would be thwarted because employees who are required to provide notice of foreseeable leave would be left unprotected from retaliation. Furthermore, the District Court reasoned that the FMLA is intended to support employees and employers in planning for future FMLA absences and, therefore, it would be counterproductive to discourage employees from sharing information regarding the need for future leave well in advance of the that leave.

In light of these developments, employers should evaluate internal procedures to ensure that FMLA leave requests are administered accordingly.

Josh Gessling

Joshua B. Gessling assists employers in a broad range of labor and employment law matters, and provides litigation and trial services for KDDK clients. Josh also utilizes his background in international law to assist businesses with operations abroad in corporate compliance and workforce management issues.

For additional information on how this case affects your business, contact Josh at (812) 423-3183 or JGessling@KDDK.com, or another member of the KDDK Labor and Employment Law Practice Team.

Form I-9 must be completed by all employers to confirm the identity of newly-hired employees and verify the employee’s eligibility to work in the United States.  The revised Form I-9 has expanded from one to two pages, contains new information fields for an employee’s telephone number and e-mail address, has a new layout, and includes more detailed instructions.  The enhanced instructions include added detail on completing the form, the required timetable and acceptable documents.

Although the USCIS asked employers to start using the new Form I-9 immediately, it provided a grace period during which the expired Form I-9 can be used.  The grace period expires May 7, 2013.  After this date, employers who do not use the revised Form I-9 may be subject to penalties.  The new Form I-9 is available on the USCIS website at http://www.uscis.gov/files/form/i-9.pdf.

Employers are not required to complete the new Form I-9 for current employees with a properly completed Form I-9 on file, unless re-verification applies.

Carrie Roelle

Carrie Roelle, a member of the KDDK Labor and Employment Law Practice Team and the Litigation and Trial Services Practice Team, defends employers before state and federal courts, as well as various administrative agencies in matters involving allegations of discrimination, harassment, interference, and retaliation. In addition to litigation, she participates in counseling employers on employment issues they face each day, including wage and hour compliance, disability issues, workplace policies, and litigation avoidance.

If you have questions regarding the revised Form I-9 or any issue related to Labor and Employment Law, please contact Carrie at (812) 423-3183 or CRoelle@KDDK.com, or contact any member of the KDDK Labor and Employment Law Practice Team.   

The facts alleged by the plaintiffs and assumed as true for purposes of summary judgment and appeal involve allegations of sexual abuse of the plaintiffs’ child.  Specifically, the plaintiffs allege that the Department of Child Services (“DCS”) failed to timely notify them of known or suspected abuse of their child.  The plaintiffs relied upon a certain notice statute to make a claim against DCS.  Specifically, the plaintiffs pointed to Indiana Code 31-33-18-4, which states that the department shall give notice of reports and allow records to be available upon request.

A divided Court of Appeals affirmed the trial court’s grant of summary judgment to the DCS with the majority holding that the statute relied upon by the plaintiffs does not confer a private cause of action against the DCS.  973 N.E.2d 1186 (Ind. Ct. App. 2012).  The COA further held that even if such a cause of action existed, the DCS would be immune under the Indiana Tort Claims Act because its actions in the case constituted “initiation of a judicial proceeding,” for which immunity is afforded pursuant to Indiana Code 34-13-3-3(6).

At oral argument on March 28, the justices of the Indiana Supreme Court posed questions centering on the issue of whether a private cause of action currently exists, the legislature’s intent, and the competing public policies.  If the justices’ questioning is indicative of the reasoning to come in their ultimate ruling, it would seem the Court is going to decide the issue based upon whether a private cause of action exists exclusively, rather than any immunity grounds.

If the Court rules a private cause of action exists and the plaintiffs’ case to proceed, that precedent could have the effect of significantly broadening plaintiffs’ ability in future cases to sue governmental entities and their employees when any statutory language empowers the entity or its employees to complete certain tasks.  The Indiana Supreme Court will issue a written opinion on its decision, but the timeframe for that decision is unknown.

Crystal Wildeman

Crystal Wildeman primarily handles cases defending individuals and organizations in the areas of personal injury and products liability, but she also represents clients in general appeals and trial services in most areas of civil law in the States of Indiana, Illinois and Kentucky.  She further specializes in complex litigation, including issues of e-discovery and commercial arbitration.  If you would like to discuss issues concerning potential liability or defending a claim, please contact Crystal at (812) 423-3183 or cwildeman@KDDK.com. 

To learn more about the KDDK Government Law Practice Team – which represents state and local government units (including boards), public utilities and other political subdivisions, school corporations, and universities – please click here.

Mike DiRienzo

Mike DiRienzo, a Partner at Kahn, Dees, Donovan & Kahn (KDDK), will be a featured presenter in a Rule 60 Practice seminar (1 CLE) on Thursday, April 4, at 12:00 noon at the Evansville Bar Association office, located in the Walker Building at 401 S.E. Sixth St. in Evansville.  Mike will cover how to oppose a Motion to Set Aside Judgment and will provide examples of objections to motions and the relevant case law.  An additional speaker will discuss how to successfully argue in favor of the Motion to Set Aside Judgment.

Price is $30 for EBA Members, $45 for Non-members.  Register on-line at www.evvbar.org or with Jeana Walker at jeana@evvbar.org or (812) 463-3201.

Mike DiRienzo has more than 10 years’ experience assisting clients in the areas of bankruptcy, collection and creditors’ rights law; government, schools and municipal law; and complex commercial litigation involving business, environmental, construction and real estate disputes and condemnation proceedings in state and federal courts in Indiana and Illinois.  Mike uses his litigation experience to give clients special perspective and advice on legal strategies regarding complex commercial transactions involving acquisitions, distributorships, commercial leases and protection of confidential information. Mike helps clients effectively resolve disputes and continue to build their businesses.  For more information, please contact Mike at (812) 423-3183 or MDiRienzo@KDDK.com.

The Indiana Court of Appeals decided South Shore Baseball, LLC v. DeJesus on February 15, 2013…just in time for this year’s baseball season.  In that case, the Plaintiff was struck in the head by a foul ball at a baseball game then sued the team owner for failing to prevent the injury.  While most stadiums provide some protection from foul balls, it would be nearly impossible to completely enclose the field.  Some would argue that it would also take away from the fan experience of the game.  The question becomes whether a member of the crowd should know about and comprehend the danger of a ball leaving the field of play.

The Plaintiff’s theory in South Shore Baseball was premises liability and negligence.  Under premises liability, all premises owners or possessors owe an invitee a duty to prevent injuries from dangers of which the invitee may not be aware.  This applies to owners or possessors of all types premises, each of which may pose its own unique dangers.

The Court in South Shore confirmed that because the risk of getting hit by a foul ball was danger of which an invitee should be aware, a spectator could not recover on a premises liability claim.  Judge Cale J. Bradford eloquently wrote in the opinion, “The risk of getting hit by a foul ball at a baseball game does not amount to an unreasonable risk of harm.  It is common knowledge that foul balls may leave the field of play and enter the stands…The risk of being hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game…”

While the Court of Appeals similarly found for the baseball team on the Plaintiff’s negligence claim, it appears that negligence would be the most likely theory of recovery if an injured fan was to recover in such a situation.  For now, when you are attending a baseball game, know that you will legally be held to know the danger of a foul ball.  When one comes your way, hopefully the game’s broadcaster will say, “Now therrrrre’s a lucky fan,” rather than, “Oooooh, that’s going to leave a mark!”

Greg Freyberger is a partner in the Litigation & Trial Service practice team of Kahn, Dees, Donovan & Kahn, LLP.  If you have questions or concerns about how to legally protect your business from potential premises liability or negligence claims, please contact Greg or another member of the KDDK Litigation & Trial Service practice team.