Changes in Indiana Employment Law

Should seasonal workers be allowed to collect unemployment benefits in their downtime? The State of Indiana recently passed legislation precluding seasonal workers from collecting unemployment benefits when they are laid off at the end of the season. See Indiana Code Section 22-4-3-5.

Aside from the political and economical issues with this new change in the law, this article discusses the new statute, provides practical implications, and addresses problematic issues.

Indiana Code Section 22-4-3-5 essentially provides that an employee is not unemployed (and thus not entitled to unemployment benefits) during any time that the Department of Workforce Development finds that the employee (1) is on vacation and (2) has not received compensation from the employer for that week because of either a written contract between the parties or because of the employer’s regular vacation policy and practice.

One of the exceptions to the above rule is that an employee will be entitled to unemployment benefits if the employee had no reasonable assurance from the employer that he or she will have employment available at the start of the following season.

For example, if the employer lays off the seasonal worker in December and tells the worker that there is no guarantee that a job will be available the following spring and that the worker would need to reapply for any job with the employer, then it is arguable that the worker would be entitled to unemployment benefits because there is no reasonable assurance of continued employment.

However, if the employer lays off the seasonal worker and tells the worker that he or she will be called back in the spring if there is employment, and the employer has engaged in the same practice for the past couple of years, then the seasonal worker will probably not be entitled to collect unemployment benefits because there was a reasonable assurance of continued employment.

This new approach seems to conflict with past law. In Fort Wayne Community Schools v. Review Board of the Indiana Employment Security Division, 428 N.E.2d 1379, 1383-1384 (Ind. Ct. App. 1981), the court held that the employee “had, at most, only a hope of being reemployed… [and] [t]his is not enough to constitute a reasonable assurance of continued employment… “.

Nonetheless, the key question that is presented with the new law is whether or not the employee had any reasonable assurance of continued employment when the employer laid the seasonal worker off.

Another exception to the rule is that the rule does not apply to a worker whose employer fails to comply with a department rule or policy regarding the filing of a notice in connection with separation arising from the vacation period. However, this exception is essentially meaningless because the Department of Workforce Development admittedly has no such rule or policy regarding the filing a notice.

In conclusion, just because a seasonal worker collected unemployment benefits in the past when he or she was laid off, does not mean that that same seasonal worker will be entitled to collect unemployment benefits in light of the new law.

Indiana Workers Compensation Act: Termination of Wage Replacement Benefits for Failing Drug Screen

Under the Indiana Worker’s Compensation Act there are normally three different benefits that an injured worker can except to receive. First, the injured worker can expect that his or her employer will pay for all medical treatment for the work-related injury. Second, the injured work can expect to receive wage replacement benefits otherwise known as temporary total disability (“TTD”) benefits. Third, the injured can expect to receive compensation for any permanent injury as a result of the work-related injury. This happens when a permanent partial impairment (“PPI”) rating is assigned after the injuried worker reaches maximum medical improvement (“MMI”).

With respect to TTD benefits, there are several different events that can occur resulting in the TTD benefits being terminated. Normally, TTD benefits are terminated once the injured worker reaches MMI, that is, once the treating doctor has concluded that the injured worker has returned to his or her baseline level or MMI.

However, sometimes the wage replacement benefits are terminated because the injured worker refuses work that is offered to him or her that is within the doctor’s restrictions. In other instances, the TTD benefits might be terminated because the injured worker tests positive for drugs or alcohol and is terminated from his or her employment.

If the injured worker fails a drug screen, then the employer may terminate the employee’s employment. Once the employee is terminated, the employer has no obligation to pay wage replacement benefits. If the failed drug screen occurred immediately after the work-related injury the termination of wage replacement benefits will like be upheld by the Indiana Worker’s Compensation Board.

However, if the employee is terminated from his or her employment because of a failed drug screen that was randomly administered several months after the work-related incident and while the employee is off work as a result of the work-related injury, the Indiana Worker’s Compensation Board is not likely to uphold the termination of wage replacement benefits.

There are several considerations that are taken into account, including the type of drug consumed, the amount, as well as the time that has elapsed since the employee was taken off work. If the employee fails a random drug screen, there certainly is not any basis for contesting the termination, but there would be a basis for contesting the termination of TTD benefits because there really is not a good faith reason for cutting off the wage replacement benefits because of a failed drug screen.

The Worker’s Compensation Board is likely to carry out the humane purposes of the Indiana Worker’s Compensation Act and not allow the employer to cut off wage replacement benefits just because the employee failed a drug screen while he or she was off work due to the work-related injury.

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Indiana Employment Law

A topic in Indiana employment law that recently has generated some interesting debates involves the Wage Payment Statute under Ind. Code. 22-2-5 and the Wage Claims Statute under Ind. Code. 22-2-9. Both of these statutes govern the options available to an employee who believes his or her employer has failed to pay wages owed. However, it is important to know the differences between the two statutes.

First, the Wage Payment Statute governs the time within which employers must pay wages to their employees. If an employee assigns a wage payment claim to the Department of Labor (“DOL”) and the DOL accepts that assignment, the employee cannot bring a lawsuit under the Wage Payment Statute, unless the DOL ratifies, is substituted, or joins the employee’s lawsuit.

Second, Wage Claims Statute concerns disputes over the amount of compensation. Claims under the Wage Claims Statute must be filed with the DOL. After filing an application with the DOL, a waiver or referral must be requested from the DOL or the Attorney General’s Office (“AGO”) so the employee’s attorney can proceed with the lawsuit.

Submitting an application to the DOL is relatively easy. Normally, the employee’s attorney will handle the process and submit the application using forms provided by the DOL. Otherwise, an application for wage claim can be filed online through the DOL’s website.

It is important to discuss with an attorney or the DOL, if the employee does not have an attorney, the various requirements regarding filing an application. For example, the DOL will refuse to process the application if the employee’s basis is minimum wage, overtime, holiday pay, or sick pay. Additionally, the DOL will not process the application if the employer has filed for bankruptcy is not located in the State of Indiana. Also, if you performed the work as an independent contractor, the DOL will not process the application. The DOL will only process applications if the claim is between $30.00 or $6,000. In all other situations, the employee will need to retain an attorney.

The Indiana Supreme Court recently addressed the Wage Claim Statute and the Wage Payment Statute in the case Walczak v. Labor Works – Fort Wayne LLC, 983 N.E.2d 1146 (Ind. 2013). This decision clarified what claims are to be brought under the Wage Payment Statute, as opposed to the Wage Claims Statute.

The Walczak case turned on the meaning of “separated from the pay-roll” as that term is used in the Wage Claims Act. The supreme court found that the issue was truly jurisdictional; if the worker was involuntarily separated from the payroll, the trial court had no jurisdiction over her claim, but if she voluntarily left her employment, the trial court did have jurisdiction.

The supreme court concluded that when an employee who did not leave her job on her own terms made a claim for wages, it made sense to subject her claim to administrative review before it may proceed directly to court. A day labor employee was not separate from the pay-roll for the purposes of the Wage Claim Act unless that employee had no immediate expectation of possible future employment with the same employer. The worker did have such an immediate expectation. She continued to work for the agency on a sporadic basis for the next four weeks. The worker was not separated from the pay-roll and need not comply with the requirements of the Wage Claims Act.

The Walczak case extended the law and held that “[w]hen an employee who did not leave her job on her own terms makes a claim for wages, it makes sense to subject her claim to administrative review before it may proceed directly to court.” An employee is not separated from the payroll for the purpose of the Wage Claims Act unless than employee has no immediate expectation of possible future employment with the same employer.

7 Attorney Mistakes on LinkedIn

I am not a social media expert but rather an attorney who uses social media. Social media skills have been something I have learned over time, by trial and error, starting with my Facebook account in 2005. Intentional usage of social media as a networking tool is something I didn’t begin until later, as I began learning how to network. There is a dance to be learned with both traditional networking and with social media networking. As an attorney less than three years into practice, I’m still learning how to improve my networking dance, but over time I have picked up on several mistakes that I or others have made while using social media. Here are some common LinkedIn mistakes specific to attorneys:

Complying with attorney ethics rules.

Although this section will be considered the most important section by many attorneys, I intend to keep it short. There are a lot of seminars and articles that scare attorneys away from social media; these seminars and articles focus more on ethical issues than on giving advice on how to effectively use social media. This is unfortunate: social media is here to stay and attorneys should learn how to use it.

LinkedIn profiles are construed as advertising in some states and so you should ensure that your profile complies with your state’s ethical rules. If you are an Indiana attorney, make sure your profile complies with Rules 7.1 and 7.2 of the Indiana Professional Rules of Conduct. As of October 2010, the Rules were modified and the former rule that testimonials are absolutely not permitted has been eliminated. You still need to be cautious if you want to have testimonials: pursuant to the Comments in Rule 7.1, third parties cannot make statements about you that you could not make about yourself. Also, if you are admitted to the bar in Indiana, you should not list a “specialty” on your LinkedIn profile unless you are certified by an agency or fall under one of the other exceptions of Rule 7.4.

Although this section was listed first, the remaining sections are equally important as they cover mistakes that negate your original purpose for joining LinkedIn. Attorneys are trained from law school to read and interpret ethics rules whereas the business potential and networking uses behind social media are usually learned over time while in practice. Don’t let the risks of ethical violations subsume your purpose for joining LinkedIn.

Failing to target your audience.

Targeting your audience is an important step: you need to do this to get more benefit out of LinkedIn.

Who are you hoping will see your profile? Potential clients? Potential employers? Legal recruiters? Potential partners? Potential referral sources? Others who can help further your career?

The audience will affect how you should portray yourself on LinkedIn and how you use LinkedIn. If you’re aiming for multiple audiences, like most attorneys, then you will need to try to keep all of your target audiences in mind. LinkedIn frequently shows up as an individual’s first “hit” in an online search and so it is a great way to market to those who are researching you.

Using the proper headline on Linked In.

Your headline is the first thing that potential connections, recruiters, and others will see. LinkedIn automatically uses your current job title unless you take the step to edit your title: on your Edit Profile page, click on the “edit” button just above your name and title.

This correction is important as the headline is your first opportunity to market who you are. More importantly, your headline needs to include those words that would be used in a search by your target audience. If you want a potential client to find you in a search of “Indianapolis” and “attorney,” you need to have “attorney” in your headline. You may not show up in results if you only display that you are a “Partner,” “Associate,” “CEO,” etc., of such-and-such law firm. If you are an associate or partner who is hoping a recruiter will discover you in a search of associates or partners at your firm, you may want to keep using “Associate” or “Partner.” Even if you edit your headline, your official title at your law firm can still be used in your Experience section.

Finally, you may want to consider putting your practice area(s) in your headline, so that people will know you as an Intellectual Property attorney or a Corporate Reorganization attorney.

“Career Opportunities.”

If you are currently employed, you should consider avoiding “career opportunities” as an option in the Interested In section of LinkedIn. I have seen several currently employed associates and partners list this on their profile. Your current employer could see this and there is no reason to risk appearing disloyal; the employment economy for attorneys is still poor so don’t risk losing your position before you are ready to make a jump.

Failing to stay active on LinkedIn.

Unless you simply wanted your resume on the internet, there is not much point of making a profile and then leaving it to sit in cyber world. LinkedIn is a powerful tool for improving your professional relationships.

A better use for LinkedIn would be to take the opportunity to build respect from your colleagues or potential clients. You can post articles, blog posts, and newsworthy information; these posts will go into the updates feed that your connections will see. These updates will also remain on your profile unless you specifically delete the posts. Every so often, you can make updates to your Experience, Summary, or another section on your profile as a way to tempt people to look at it; the more often an individual looks at your profile, the more likely that individual will remember your experience and areas of practice.

Using posts in this way is a low effort technique of completing the traditional networking dance: after making initial contact with a new connection, you should follow-up to make the connection stronger. While posting updates is not as effective as making a phone call or having lunch as a follow-up, it is better than failing to follow-up at all. If you’re good at using the update feature, you can keep more people following you with less effort than traditional networking. This strategy is most effective when you use it as a method of supplementing traditional networking rather than replacing traditional networking.

Failing to brand your activity on LinkedIn.

When utilizing LinkedIn’s updates feed to post articles, blogs, etc., you have an opportunity to brand yourself to your connections. You should determine who your target audience is on LinkedIn and decide how you want to be perceived by that audience. Branding your posts can be a method of helping people connect specific characteristics, traits, or facts to you so that when certain legal issues or topics arise, people will contact you.

Whether you are focusing on building referrals or client development, if you practice in a specific area of law, you will want people to think of you when specific legal issues arise for them or their clients in that area of law. Legal articles can be good items to post but sometimes even lawyers find scholarly articles something to put at the bottom of their reading pile; consider posting interesting news articles or interesting commentary related to issues in your areas of law so that your posts are more likely to be read. These posts can help people to remember your areas of practice.

Although this next tip might not necessarily be a branding technique, I also like to attempt to intentionally increase the general goodwill and respect I receive by posting good quality articles and blogs that are aimed towards attorneys in general. Sometimes my posts will involve general practice management, networking advice, or commentary on the law profession. Thoughtful articles can leave a good impression with your colleagues and help them with their own practice and career. As referrals from other attorneys continue to be a large source of business for attorneys, I consider colleagues a target audience and the potential goodwill I could gain an investment.

Finally, be prepared to have different branding plans for LinkedIn versus other social media platforms you might be utilizing; not only will you likely have a different audience on each of the different social media platforms, each of the social media platforms are utilized by their users very differently. My Peace Corps background and love for Indianapolis has been helping me develop a following on Twitter more than my legal background; a few legal-related tweets thrown in helps circle them back to the fact I am an attorney.

Failing to actively add connections on LinkedIn.

LinkedIn searches operate in a unique way: when someone searches for an attorney, individuals who that individual are connected with will first show up in the search results. When there are not any “first degree” connections, LinkedIn will next try to show individuals who are connected to that person’s connections, i.e., “second degree” connections. Ultimately, the more contacts you have, the higher likelihood you will show up in the first page of someone’s search results even if you do not know that person. I have already entered into local counsel contracts as a result of this process even though I didn’t personally know a single individual that the hiring firm knew.

Increasing the number of contacts you have is an important way to be found on LinkedIn if you want to be found by clients, recruiters, and others. I’ve spent numerous hours hunting down individuals I served with in the Peace Corps, classmates from college and law school, and more in an attempt to have connections in more cities in the United States so as to further increase the likelihood I will show up in search results. (If the intent behind forming those LinkedIn connections sounded rather cold, you should also be aware that I was already connected with most of those individuals on Facebook which I consider a better platform for maintaining personal relationships.) To continue to increase your contacts, consider adding a link to your LinkedIn profile to your email signature.

LinkedIn suggests that you only add individuals that you personally know; I generally follow this advice with only a few exceptions. If your primary focus is on improving your search rankings, you should ignore this advice and connect with as many people as possible. If you use this method, be prepared for questions from those strangers on how you know the connections that you share with them.

Sources for Further Improvement.

These tips are specifically aimed towards attorneys but there are numerous resources out there to further assist you in improving your profile that are not attorney specific. Chris Brogan’s blog is a great resource for common sense tips on how to improve your profile; the blog can be found at chrisbrogan.com. His book Social Media 101 comprises many of his blog posts and is an excellent source for introducing yourself to social media. I also recommend reading the following blog posts at Blue Sky Resumes and Executive Resume Branding, here and here, which lists common mistakes generally made by users on LinkedIn. I found both lists to be helpful.

Indiana Expungement Law

Indiana’s New Criminal Record Expungement Law

The new Indiana Expungement Law, I.C. 35-38-9-2, became effective July 1, 2013. The Expungement Law provides a means by which persons with certain criminal convictions on their record may petition the Indiana courts to have their record expunged. As it is used in the Indiana statutes, expungement means restricting access to or restricting the use of the person’s records. A person who meets the requirements of the statute is entitled to have the conviction records for most misdemeanor and minor Class D felonies expunged. It may be possible to expunge certain higher felony convictions as well.

What Does It Mean To Have Your Criminal Record Expunged?

If the court orders the conviction records for a misdemeanor or minor Class D felony expunged, the records are sealed and excluded from public access. Future access to such sealed court records will be limited to a prosecuting attorney under certain conditions, law enforcement officers acting in the course of the officer’s official duty and the FBI and Department of Homeland Security. Other parties may gain access to the sealed records under certain conditions after petition and hearing with the Indiana court. Generally, however, your records will not be available to the public.

Fresh Start Without A Public Criminal Record

Do you have a criminal conviction in your past that has prevented you from gaining employment or housing, or have you been embarrassed by a criminal background check that exposed your record? The new Indiana Expungement Law, or Second Chance Law, was created to provide people like you a means to get a fresh start. If a court orders your criminal record expunged, you may legally claim to the public that you do not have those convictions, as if the conviction never happened. Further, it is illegal for a person to discriminate against another person on the basis of a record that has been expunged by an Indiana court.

Seek The Advice Of A Knowledgeable Indiana Attorney

The Indiana Expungement Law was created to give people a second chance at life without a criminal record, but it is important to understand that there are restrictions effecting your ability to petition for expungement more than once in your lifetime. Filing your petition to seal your criminal record requires careful planning and it is important that it is filed at the optimal time. The process for expungement is very complex and it is recommended that you seek the advice and assistance of an attorney.