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When is a Person an Employee of Another?
Law Blogs |
2011/07/20 09:25
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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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Bank of Hawaii settles overdraft fee class-action lawsuit for $9 million
Topics in Legal News |
2011/07/19 09:25
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A tentative $9 million settlement with Bank of Hawaii requires the bank to pay each of its customers who had more than one overdraft fee in a day over the last five years.
Bank of Hawaii, the state's second-largest bank, reached the class-action lawsuit settlement in response to claims that the bank improperly charged overdraft fees on debit card transactions, the Honolulu Star-Advertiser reported Tuesday.
The lawsuit accused the bank of systematically re-ordering debit card transactions from highest dollar amount to lowest dollar amount, a practice that allowed the bank to deplete customers' available funds as quickly as possible while maximizing the number of overdraft fees.
The $9 million will be put in a settlement fund used to refund customers and pay attorneys' fees, administrative and other costs in exchange for a complete release of all claims against the company, the bank said. It's unclear how many Bank of Hawaii customers are eligible for refunds.
Similar lawsuits against American Savings Bank and Central Pacific Bank, the state's third- and fourth-largest banks, also are pending.
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Challenge to visa lottery dismissed by judge
Court Watch |
2011/07/15 22:20
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In a blow to thousands of hopeful would-be immigrants who had been told they'd won a chance to apply for a green card, a federal judge ruled that the State Department can toss out the results of its May visa lottery, which were deemed invalid because of a computer error.
The State Department said the results of a fresh drawing would be available Friday.
Members of the group had been seeking class action status in their bid to stop the government from nullifying their selection in the visa lottery.
In early May, about 22,000 people were notified they had won a chance to apply for a visa as part of the Diversity Visa Lottery Program, which is aimed at increasing the number of immigrants from the developing world and countries with historically low rates of emigration to the U.S.
One of them, 42-year-old French native Armande Gil, who lives in Florida, called Thursday's decision by U.S. District Judge Amy Berman Jackson another disappointment.
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High court sets oral arguments in campaign lawsuit
Court News |
2011/07/15 22:19
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A conservative group fighting campaign finance rules in Montana says in a recent filing that it agrees disclosure laws can apply to corporate speech, but Western Tradition Partnership argues it isn't subject to current disclosure laws because its attack mailers fall outside the definition of "electioneering."
The Montana Supreme Court has set oral arguments for September in the state's challenge to a district court decision that tossed out the outright ban on corporate political spending.
Western Tradition Partnership first filed the lawsuit last year piggybacking on the high-profile Citizen's United case decided by the U.S. Supreme Court. The group aims to undo Montana's century-old restriction on corporate political spending.
Western Tradition is separately fighting a decision that it failed to report campaign expenditures. The group argues its activities are not intended to influence elections.
In a brief filed earlier this month with the Supreme Court on the main case fighting the ban corporate campaign spending, WTP made it clear it believes campaign finance regulation is OK.
"If the State is truly concerned with accountability, the state has other means at its disposal, such as disclosure laws, to make sure that people know who is speaking," Western Tradition argued in the brief. "It is inappropriate, and indeed, unconstitutional, to completely outlaw corporate political speech."
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Ryan & Maniskas, LLP Announces Class Action Lawsuit Against Ebix, Inc.
Headline Legal News |
2011/07/15 12:20
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Ryan & Maniskas, LLP (www.rmclasslaw.com/cases/ebix) announces that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of purchasers of the common stock of Ebix, Inc. ("Ebix" or the "Company") (NASDAQ: EBIX) between May 6, 2009 through June 30, 2011, inclusive (the "Class Period").
For more information regarding this class action suit, please contact Ryan & Maniskas, LLP (Richard A. Maniskas, Esquire) toll-free at (877) 316-3218 or by email at rmaniskas@rmclasslaw.com or visit: www.rmclasslaw.com/cases/ebix.
Ebix supplies software and electronic commerce solutions to the insurance industry. The Complaint alleges that during the Class Period, Defendants issued a series of materially false and misleading statements regarding the Company's business and financial results. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company's tax provisions did not conform to Generally Accepted Accounting Principles; (2) the Company overstated its account receivables; (3) the Company consistently failed to tie customer payments to specific invoices; (4) the Company lacked adequate internal and financial controls; and (5) as a result of the foregoing, the Company's statements were materially false and misleading at all relevant times.
On March 24, 2011, Seeking Alpha published a report ("Report”) accusing the Company of engaging in a number of accounting manipulations, including: (a) manipulating stated organic growth; (b) overstating profit margins; (c) overstating its accounts receivables; (d) manipulating tax liabilities; and (e) inflating cash flows. The Report concluded that the Company’s "problems run deeper than accounting. The EBIX story also comes with multiple auditor resignations, governance abuses, misrepresented organic growth, questionable cash flow and a contentious CEO.” On this news, the Company’s shares plummeted $7.20 per share, or nearly 24%, to close on March 24, 2011, at $22.52 per share, on unusually heavy trading volume.
On June 30, 2011, the media reported that the shareholders of Peak Performance Solutions, Inc. ("Peak”), who sold their business to Ebix, filed a lawsuit in the United States District Court for the Southern District of Ohio, claiming that Ebix was consistently unable to bill customers properly, tie customer payments to invoices, and provide basic financial data or calculate revenues for Peak. On this news, the Company's shares declined an additional $1.30 or more than 6% and closed at $19.05.
If you are a member of the class, you may, no later than September 12, 2011, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Ryan & Maniskas, LLP or other counsel of your choice, to serve as your counsel in this action.
For more information about the case or to participate online, please visit: www.rmclasslaw.com/cases/ebix or contact Richard A. Maniskas, Esquire toll-free at (877) 316-3218, or by e-mail at rmaniskas@rmclasslaw.com. For more information about class action cases in general or to learn more about Ryan & Maniskas, LLP, please visit our website: www.rmclasslaw.com.
Ryan & Maniskas, LLP is a national shareholder litigation firm. Ryan & Maniskas, LLP is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide.
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