Gregory A. Sobkowski | Hodges & Davis Law Firm Northwest Indiana

On January 1, 2020, a new rule took effect which updated the earnings threshold necessary to exempt executive, administrative or professional employees from the Fair Labor Standards Act (FLSA) minimum wage and overtime pay requirements.

The FLSA requires employers to pay the federal minimum wage to employees who work more than 40 hours per week, and overtime pay of at least 1.5 times the regular rate of compensation.

The FLSA also contains a provision which exempts executive, administrative or professional employees from the minimum wage and overtime pay requirements. To fall under this exemption, an employee must (1) be paid a pre-determined, fixed salary that is not subject to reduction based on quality or quantity of work; (2) meet a minimum specific amount; and (3) perform duties that primarily involve executive, administrative, or professional activity as defined by statute.

The updated rule increases the earnings threshold necessary for employees to fall under the exemption, and allows an employer to count a portion of bonuses or commission towards meeting the threshold. The update will (1) raise the “standard salary level” from $455 per week ($23,660 per year), to $684 per week ($35,568 per year); (2) raise the total annual compensation requirement for “highly compensated employees” from $100,000 to $107,432 per year; and (3) allow employers to count non-discretionary bonuses and commissions paid annually, toward 10 percent of the “standard salary level.”

In other words, while the old rule meant that employers did not have to pay overtime or minimum wage to employees who earned more than $23,660 per year. Under the updated rule, employers have to pay minimum wage and overtime to employees who earn less than $35,568 per year.

The Department of Labor estimates that the update will make an additional 1.3 million workers eligible for overtime pay.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. – January 2020

On July 1, 2018, Indiana joined the 48 other states that allow the enforcement of so called in terrorem clauses in wills and trusts. These clauses, more commonly known as “no contest clauses” are provisions in a will or trust that state if a beneficiary seeks to contest the will or trust, they lose the property they were going to inherit. And now, pursuant to Indiana Code § 29-1-6-2 and Indiana Code § 30-4-2.1-3, these clauses, if included in a will or trust are enforceable by an Indiana court.

The common purpose of no contest provisions in a will or trust document is simply to reduce or eliminate the likelihood that beneficiaries will seek to initiate lengthy and expensive litigation to contest a will or trust. In this respect, a no contest provision can at least give beneficiaries something to think about before filing suit to contest a will or trust. It remains to be seen, however, whether or not the law has deterred these contests.

There are numerous exceptions contained in the statutes that limit the enforcement of no contest clauses in certain factual circumstances. Some notable exceptions include:

(1) An action brought by an executor or other fiduciary who is not a beneficiary;

(2) An action to determine whether a proposed motion or proceeding constitutes a contest;

(3) An action seeking to interpret the construction or interpretation of a will; and

(4) An action brought in “good faith” by the beneficiary.

Whether a no contest provision should be included in your will or trust may be dependent on many variables. If you are interested in having a will or trust prepared, contact the attorneys at Hodges and Davis, P.C. who can help you decide if a no contest provision is right for your will or trust.

Note that this post is only a brief summary of no contest clauses.  It does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. – January 2020

Gregory A. Sobkowski | Hodges & Davis Law Firm Northwest Indiana

Does your home improvement contract comply with Indiana’s Home Improvement Contract Act (“HICA”)? The Act can be found at Indiana Code § I.C. 24-5-11. Its intent is to protect home owners by placing minimum requirements on the contents of home improvement contracts. The law places the burden on the home improvement contractors (not home owners) to use contracts that comply with the mandates of the act.

A home improvement subject to the law includes any alteration, repair, replacement, reconstruction or other modification of residential property. For purposes of the law, a home improvement contract means the written or oral agreement between a home improvement contractor and home owner to make an improvement for which the contract price exceeds $150.00.

Under HICA, home improvement contracts must include:

  • The name of the home owner and the address of the home where the work will be done.
  • The names and phone numbers where the home owner can direct problems and inquiries, as well as an e-mail address maintained by the contractor.
  • The date the contract was submitted to the home owner and, if applicable, any time limit on the home owner’s acceptance of the home improvement contract.
  • A reasonably detailed description of the proposed home improvement(s).
    • However, if there are no specifications provided in the description of the work, a contractor can provide it later, so long as it is provided in a dated, written document prior to any work beginning and the home owner approves the specifications.
  • A statement that announces the approximate starting and completion dates of the home improvement(s).
  • A statement of any contingencies which would materially change the approximate completion date.
  • The contract price.
  • Signature lines for the contractor (or the applicable employees or agents) and for each home owner who is subject to the contract, including a legibly printed or typed version of that signature under each signature.

In addition to these mandatory contract provisions, the statute also requires that:

  • A home improvement contract must be written so each home owner who is a party to the contract can reasonably read and understand it.
  • A completed contract signed by the contractor must be provided to the home owner before the contract is signed by the home owner and before the contractor accepts a down payment for the work
  • The home owner be provided a fully executed copy of the home improvement contract “immediately” after the home owner signs it.
  • The contract must provide the dates each party signed the contract.
  • A modification of a contract must be in writing.

If a contractor fails to comply with the statutory provisions, he or she is subject to a deceptive acts lawsuit, which can be brought by either the Attorney General or a home owner. A home owner can be awarded damages actually sustained, and a court may triple the damage award for a willfully deceptive act. However, an award of treble damages cannot exceed $1,000.00. A court can also award attorney’s fees to a prevailing party and void or limit the application of a contract resulting from the deceptive acts.

In sum, Indiana contractors need to be aware of their duties to owners and tenants before entering into any home improvement agreement over $150.00; and failing to know the law could be costly. Please note that this article is only a brief summary of HICA, not legal advice, nor does it establish an attorney-client relationship. Should you have any specific questions regarding HICA, or any other business planning needs, please do not hesitate to contact Gregory A. Sobkowski at Hodges and Davis, P.C.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. — January 2020

Steven J. Scott | Hodges & Davis Law Firm Northwest Indiana

The issue of mandatory flu vaccinations and requests for exemption from flu vaccinations based on religious grounds has recently found itself before the EEOC. The EEOC has not taken such religious discrimination claims lightly. In fact, on June 25, 2019, the EEOC released a statement that Memorial Healthcare in Owosso, Michigan would pay damages, along with other relief, to settle a religious discrimination lawsuit filed by the EEOC.

The EEOC alleged that Memorial violated federal law in refusing to hire a medical transcriptionist because of her religious beliefs against flu shots. According to the EEOC, Memorial refused to accommodate the beliefs of the transcriptionist, and further declined to accept her offer to wear a mask during flu season. Under hospital policy, wearing a mask was a viable alternative to inoculation; however, Memorial refused to extend this accommodation to the transcriptionist, and thereafter rescinded its offer of employment. Therefore, the EEOC alleged that Memorial’s actions violated Title VII of the Civil Rights Act of 1964, which mandates that employers provide reasonable accommodations for religious beliefs, absent undue hardship.

To settle the lawsuit, Memorial will pay damages totaling $74,418. Memorial will also permit employees with religious objections to wear a mask, rather than receive a flu shot. Finally, Memorial will train its staff in the accommodation policy.

This lawsuit and settlement are potentially significant for employers. As they balance the need for employees to receive a flu vaccine for the safety and well-being of employees, co-workers and customers/patients with accommodation of religious beliefs.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. — November 2019

On April 24, 2019, Senate Enrolled Act 380 was signed into law, amending the Indiana guardianship code to add new sections addressing Supported Decision Making (IC § 29-3-14) and Less Restrictive Alternatives (IC § 29-3-1-7.8). The amendments send at least one clear message: a full-blown Guardianship is not the only option.

Traditionally, when an incapacitated person needs assistance in making significant life decisions, a guardian or other agent, such as a power of attorney or healthcare representative, can be appointed to assist and ultimately make these decisions on behalf of the incapacitated individual. This approach and these options do not always account for the level of assistance needed by the individual and can overreach to the extent that the individual is not permitted to make decisions without approval of their agent (such as with a guardianship). The new law not only supports an individual’s decision making process, but honors and acknowledges a broad spectrum of assistance by requiring less restrictive alternatives in guardianship petitions.

New I.C. § 29-3-1-7.8(a) of the Guardianship Code defines “Less restrictive alternatives” as “an approach to meeting a person’s needs that restricts fewer rights of the person than would the appointment of the guardian” and includes a supported decision making agreement (as defined in I.C. § 29-3-14-2).

Supported Decision-Making (“SDM”) agreements can be used throughout any arrangement, whether in or out of a guardianship allowing an incapacitated individual to make some decisions without the guardian. These agreements are a means of promoting an individual’s decision-making skills, which in turn could lead to greater self-determination.

Supported decision making allows individuals to use their own support systems to make decisions rather than having a guardian make the decision for them. A Supported Decision-Making agreement between an individual and a supporter allows the supporter to: (1) obtain and understand information relevant to an individual’s decisions, (2) be provided an explanation of the options, responsibilities, and consequences of an individual’s decisions, (3) communicate decisions to the appropriate people, (4) assist in, but not make, decisions for the individual that has chosen them for guidance.

There are many benefits to SDM agreements, most notably, allowing the individual to retain decision-making authority. However, as with any agency agreement, there are risks as well. Inclusion of less restrictive means and supported decision making in the Guardianship Code, as adopted, may provide more opportunity for fiduciary abuse than intended. For example, the legislature failed to include basic fiduciary duties into the definition of “supporter” making it difficult if not impossible to provide a breach of fiduciary duty claim. Without basic duties defined, the statute provides supporters an opportunity to exploit vague language to take advantage of the individual who the supporter is assisting. The statute, as currently written, also fails to articulate any liability for breach of duty on behalf of the supporter.

CONCLUSION
While Indiana’s new Supported Decision Making and Less Restrictive Means statutes may be lacking in specific language necessary to hold “supporters” to the fiduciary standard required to protect the individuals they are supporting, the laws clearly place Indiana as a state acknowledging the incapacity spectrum and the level of assistance needed. The new laws provide an alternative to all-encompassing guardianships by promoting less restrictive means, thereby retaining a level of an individual’s independence.

The information provided in this article does not, and is not intended to, constitute legal advice nor does it establish an attorney/client relationship. To discuss how supported decision making agreements and less restrictive alternatives may apply to your case, please contact Hodges and Davis attorneys, Benjamin T. Ballou or Emilie E.D. Hunt.

 

Hodges and Davis, P.C. – November 2019

Bonnie C. Coleman | Hodges & Davis Law Firm Northwest Indiana

You have recently decided to start a new business, plan to buy or sell real estate, finally decided that you have put off  having a Will for entirely too long or encountered a legal problem. You need a lawyer. But the process of selecting a lawyer who meets your needs may seem daunting. How do you find a lawyer?

As lawyers, we often hear our clients tell us later that they put off getting help because finding a lawyer and making the first appointment seemed overwhelming. Hopefully, these tips will help you make the process of choosing a lawyer less difficult.

1. Identify your need. Do you need a will or a trust (estate planning services), are you looking to sell real estate, do you have a small business that needs attention, did you receive a speeding ticket, do you have an issue relating to landlord/tenant, divorce or paternity? Lawyers often only provide certain types of legal services, not everything.

2. Recommendations. There is nothing wrong with asking around when you need a lawyer. If a lawyer is recommended by someone you trust, that can make things easier.

3. Searching online. Looking on the internet is another good place to start. You can check lawyer review sites and the attorney’s website.

• Before beginning your internet research, you should consider a few basic questions. Should the law office be located an acceptable distance from your home or work? Do you want a lawyer who works with a firm or works alone? Do you want someone who is an eager new lawyer or someone more experienced?

• Can I trust reviews? The answer is yes and no. Sometimes reviews and rankings will be honest and reliable. Other times, especially in situations where a person gives a bad review of a lawyer who represents the “other” person in a dispute, the reviewer may have unreliable motivation. Also, often lawyers have limited reviews, and good lawyers may have no reviews.

• What should I look for on a lawyer’s website? First and foremost, look to see if the attorney indicates that they provide the type of legal service you need. If a lawyer says that they primarily provide criminal defense services, and you need a will, chances are that you want to keep looking. Also, make sure that the items you initially identified as important like location, etc. are met.

4. Call and make an appointment. Can you email the lawyer to set up an initial appointment? You can, but lawyers receive hundreds of emails in a week, many of which are not legitimate. Generally, calling to make a first appointment is more effective. It’s also the first chance you have to glimpse how you might be treated. Is your call taken right away and an appointment made, or if a message is left, do you receive a return call promptly? If the attorney is not available to help you or does not handle the type of legal services you need, ask for a referral to another lawyer who does provide that type of work, or ask if your town has a lawyer referral service.

5. Initial Fee. Most lawyers will not require that you hire them before a first appointment. Some may offer a free initial consultation and some may charge you for the initial appointment. When you call to make the appointment, ask what the charge will be for the initial meeting. The key here is to avoid surprises. Also, ask what documentation, or any other information, you should provide. You may be asked to send documents electronically to the attorney prior to your meeting. If you are not comfortable emailing documents, let the office know you will bring them or drop them off before the appointment.

6. Preparation for the Initial Appointment. Gather the documents and information that the attorney’s office requested and provide those as directed. Most attorneys will copy original documents that you bring. However, if you are concerned, copy your documents before the meeting. Also, make a list of questions that you want to ask during the first meeting. Having the questions written in advance will help you from forgetting or getting nervous. Importantly, include a question about fees and costs. Again, to avoid surprises, you should know how you will be charged if you decide to hire the lawyer to help you.

7. Initial Appointment. Generally, the purpose of an initial appointment is to explain what legal services you are seeking. Be prepared to explain your situation, bring documents and information requested, listen to what the attorney says to you, ask your questions and make sure you understand what is being explained. If you don’t understand, don’t be shy. Ask the lawyer to explain again.

8. Remember. “Trust your gut”. Are you feeling at ease about how you are being treated or are your questions avoided and not being answered? Most lawyers treat their clients politely and with respect, and you should expect that to happen. If it doesn’t, then maybe this isn’t a good fit. Too often people say “I never really felt comfortable.” That should be a message. Having a feeling that the lawyer is confident and will be able to help you is important.

Often people tell us that they were very nervous about seeing a lawyer for the first time. Afterward, however, they felt at ease and realized that meeting with a lawyer was easier than expected.

Please note that this Article does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis, P.C. — November 2019

On July 22, 2017, Orlando Lewis, Jr. died in a car crash in Monroe County along with his wife, Shante Lewis.  The lone survivor of the crash was the couple’s two-year-old daughter, K.L.  In addition to K.L., Orlando Lewis, Jr. was survived by his six-year-old son, J.T., whose mother is Shana Tolliver.  He was also survived by both of his parents, including his father, Orlando Lewis, Sr. (“Lewis, Sr.”).  Kathy Calloway, K.L.’s aunt, was subsequently appointed as K.L.’s temporary guardian and has remained ever since.

On July 25th, Lewis Sr., sought appointment as special administrator of his son’s estate in the Johnson County Superior Court.  Before his death, Orlando Lewis Jr. resided in Johnson County and Lewis Sr. sought the appointment so he could pursue wrongful death damages for his late son’s death.  The Johnson County Superior Court Judge granted Lewis Sr.’s petition and issued letters of administration to him several days later.  The letters of administration allowed Lewis Sr. to file a wrongful-death claim in the Monroe Circuit Court, where the accident occurred. 

The next day, Shana Toliver, J.T.’s mother, filed her own petition for appointment as special administrator of Orlando Lewis, Jr.’s estate in the Marion County Superior Court.  Toliver supports J.T., who is medically disabled.  The Marion Superior Court Judge appointed Toliver special administrator and also issued letters of administration to Toliver.  She then filed her own wrongful-death action for Orlando Lewis, Jr.’s estate in Marion County.

Toliver eventually learned of the Johnson County proceedings and on August 28th, she attempted to intervene in the proceedings and have Lewis, Sr. removed as special administrator of Orlando Lewis, Jr.’s estate.  Additionally, on August 30th, Calloway petitioned to intervene in the Johnson County proceeding and later asked the court to reconsider or remove its appointment of Lewis, Sr. as special administrator.   Both Toliver and Calloway argued that they should be appointed as special administrator of Orlando Lewis, Jr.’s estate as the appointed guardians of his children.  Lewis, Sr. had only met J.T. once and saw K.L. on four or five previous occasions.

On December 4th, the Johnson County court ordered that it would reconsider and rescind the appointment of Lewis, Sr. as special administrator and vacate his letters of administration.  The court then appointed Toliver and Calloway as co-special administrators for Orlando Lewis, Jr.’s estate for the limited purpose of pursuing the wrongful death claim.  Lewis, Sr. appealed the trial court’s decision to replace him as special administrator and the case was eventually heard by the Indiana Supreme Court.

On June 3, 2019, the Indiana Supreme Court affirmed the trial court’s order reconsidering its appointment of Lewis, Sr., in its decision in Lewis v. Toliver (In re Unsupervised Estate of Lewis), 123 N.E.3d 670 (Ind. 2019).  In affirming the decision, the Indiana Supreme Court initially focused on the fact that the trial court had not removed Lewis Sr. pursuant to statute, but had instead rescinded the appointment of Lewis, Sr. based on the court’s inherent power to reconsider a prior ruling in an open case that was pending resolution.  The Supreme Court stated that a court’s authority to reconsider a prior ruling in an underlying matter that is still pending is firmly established and is easily extended to cover the factual scenario where the court reconsiders the appointment of a special administrator.

Next, the Supreme Court held that the trial court’s actions in reconsidering the appointment of Lewis, Sr. was not an abuse of discretion.  The Supreme Court observed that the trial court had appointed Lewis, Sr. because he had “won the race to the courthouse” and, that upon receiving further information, had reconsidered the appointment when the trial court learned of Lewis, Sr.’s lack of a meaningful relationship with J.T. and K.L.  Additionally, the Supreme Court also found that the appointment of both guardians of the children as co-special administrators of the estate was a reasonable action for the trial court to take in regard to the best interests of both J.T. and K.L.

Last, the Supreme Court noted a procedural change related future requests for appointment of a special administrator.   The Supreme Court held that, although not required by statute, a court faced with a motion for appointment of a special administrator should afford notice to beneficiaries or their legal representatives and hold a hearing prior to appointing a special administrator.  In future cases, a motion to appoint a special administrator should identify each potential beneficiary or legal representative likely to be interested in the appointment, along with each person’s contact information.  After notice, the court will hear any objections to the appointment of a special administrator and will ascertain whether the petitioner is a suitable special administrator.  The Supreme Court opined that this process will ensure a more orderly appointment and greatly reduce the chance that a potential beneficiary or legal representative will come forward later and object to the appointment of the special administrator.

Going forward, practitioners should be mindful of the Supreme Court’s requirements for the appointment of a special administrator.  It would not be surprising to see the Indiana Legislature codify this requirement in the Probate Code in the future.

Note that this post is only a brief summary of the procedures related to the appointment of a special administrator.  It does not constitute legal advice nor does it establish an attorney/client relationship.  Should you have specific questions regarding the above, please contact Ben Ballou or Carl Hall at Hodges and Davis.

Hodges and Davis, P.C. – August 2019