Indiana’s Changes to Overtime Rules Not Likely to Pass

New federal rules scheduled to go into effect on December 1 are being challenged by a number of states this week. Among the 20 includes Indiana, and, despite their passionate efforts, experts predict their challenge to the changes won’t hold up in court.

The change in rules will be warmly welcomed by part-time employees who occasionally work more than 40 hours per week as they would now be eligible for overtime pay. Once the rule goes into effect, anyone making less than $47,476 dollars a year will be paid time-and-a-half for working more than 40 hours a week.

Professor of labor and employment law at Indiana University Kenneth Dau-Schmidt recognizes that the concept has already been in effect in the interpretation of law for many years. He said, “It’s been tested before. The Supreme Court has already told us that the federal government does have the authority to impose the fair labor standards act against the states.”

While Dau-Schmidt feels that it’s likely the upcoming challenge of the official ruling to be introduced will turn out to be futile. However, he does have some advice on how protestors of the rule can increase their chances of coming to a mutual agreement by arguing against the pre-determined inflation adjustments instead. In regards to the dissent on this issue, he said, “I think it makes sense that some state attorneys are going to want to challenge this.” I don’t give the challenge much chance in court though.”

It’s expected that the rule will hold. If and when it does, this will have a direct impact on the lives of 87,000 workers in the state. We shouldn’t have too much longer to wait for the final answer as Dau-Schmidt predicts it won’t take the court long to come to a final decision on the matter.

Laminate Wood Danger More Serious Than Many Think

Cancer is something most of us take measures to prevent. You wear sunscreen, avoid cigarettes and alcohol, and receive regular checkups. However, there’s a hidden danger lurking in homes across the country that could cause you to develop cancer no matter what efforts you otherwise make. It’s been shown that some laminate floors contain formaldehyde, and this can cause a series of adverse health effects.

Previous reports have suggested the presence of formaldehyde, but a new one released last Tuesday by the National Center for Environmental Health at the U.S. Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry elaborates on the increased risk for lifetime cancer as a result of exposure. Fortunately, there is a point of origin identified. Laminate wood flooring sold at Lumber Liquidators manufactured in China is to blame. Although they have ceased sales on the product, many already have it installed in their homes.

What Went Wrong in the Original Report

There was an error in calculations when it comes to the original report. Per 100,000, it was previously estimated that there were two to nine additional cases of lifetime cancer due to the formaldehyde found in this particular flooring choice. However, it’s been proven this number is closer to between six and 30 additional cases.

Due to this recent exposure, Lumber Liquidators has watched their stocks sink. After all, the new report increased the risk of the development of cancer from the product by three times the previous number. The reason the error developed is because of the miscalculation of airborne formaldehyde concentration estimates due to incorrect ceiling heights used in the study. However, it didn’t take long for those involved in the study to recognize and correct the error. The original report was made public on February 10, but it was removed nine days later and replaced with the new and corrected numbers.

Where it All Started

The story originated on the show “60 Minutes” with host Anderson Cooper. They reported that the level of formaldehyde found in specific laminate flooring was in excess of California Air Resources Board standards. Those involved with the story did their own testing using Lumber Liquidators’s products in a total of five states. Those included Virginia, Texas, New York, Florida, and Illinois.

Given the media hype, the Consumer Product Safety Commission decided to do some investigating of their own, and they found that samples of the wood they tested had shown to cause a number of adverse side effects including:

  • Eyes, nose, and throat irritation
  • Increased symptoms in those with asthma
  • Increase of symptoms in those with chronic obstructive pulmonary disorder

While Lumber Liquidators originally stated back in March 2015 that they planned to continue sales of the product, they recanted that statement as of last Tuesday when they reported they haven’t sold the product since May 2015. The latest findings have been reviewed by the Consumer Product Safety Commission, the Department of Housing and Urban Development, and the Environmental Protection Agency.

Past Claims Currently Being Settled

Shortly after this report was made public, the California Air Resources Board took action and established that Lumber Liquidators, “failed to take reasonable prudent precautions to ensure those products met such limits designed to protect public health.” Because of this, a settlement was announced in the amount of $2.5 million. These funds were deposited into the California Air Pollution Control Fund. They plan to use the money to advance research on air quality to prevent problems like this from occurring in the future.

In addition, Lumber Liquidators has also agreed to take steps to move the industry in the right direction. They are working on setting new standards to better ensure a thorough testing process on the products they put on their shelves. While the laminate flooring boasted on its label that the product met company standards, it was revealed it did exceed the acceptable level of formaldehyde. A representative of the Air Resources Board Enforcement said that this situation has increased awareness on the enforcement of the airborne toxic control measure to protect the public from exposure to serious toxins.

What to Do If You Have the Defective Product

If you know or suspect that you have the product in question installed in your home or office, it’s important that you follow a few tips to ensure the safety of you and your loved ones. Just some of the measures you can take include:

  • Opening windows to ensure a steady flow of fresh air
  • Utilizing exhaust fans
  • Avoiding smoking in the home

Furthermore, if you notice anyone in the household experiencing difficulty breathing or similar symptoms, you should immediately consult with your doctor and seek professional help to install new flooring.

Push for Sexual Orientation Protection by Indiana Chamber of Commerce

On Thursday, the Board of Directors of the Indiana Chamber of Commerce reported that they will be pushing for increased support for the LGBT community. Represented by over 100 professionals all over Indiana, a recent vote indicated that the vast majority are on the same page that civil rights laws in the state need to be expanded in order to protect sexual orientation.

Kevin Brinegar, the Chamber’s CEO and President, acknowledged that the image of the state was one of intolerance as a result of the Religious Freedom Restoration Act, and the push for increased civil rights is necessary in order to correct that perception. Indiana is a welcoming state, and anyone should be encouraged to visit or consider moving here without fear of reprimand based on sexual orientation or identification with a certain gender.

In the United States, around four percent of the population identifies as being gay, lesbian, bisexual or transgender according to a report made by the Williams Institute. However, out of a total adult population in Indiana of 6,483,802, only 182,997 identify themselves as being a part of the LGBT community. It’s impossible to say whether a push for increased civil rights would cause this number to raise. However, it is certainly a possibility that many are afraid to publically identify due to a lack of acceptance.

Brinegar is optimistic of the potential changes, and he feels that encouraging acceptance will make Indiana a more welcoming place to do business, thus increasing the economic stability of the state. Governor Mike Pence said he is discussing ways in which these changes can be implemented without causing upset in the religious community.

The “Dos” and “Don’ts” of Closing Arguments

What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:

            Do:

  1. Speak loud and clearly.
  2. Be confident.
  3. Vary your tone and location as you move from point to point.
  4. Be organized.
  5. Begin and end on a high note so your points will be remembered.
  6. Help the Jury with the instructions and form of verdicts.
  7. Keep track of your time.
  8. Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
  9. Begin working on your closing argument on day one.  It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
  10. Be yourself.
  11. Be sincere and honest and the jury will trust you as a guide.
  12. Deal with your problems head-on before your opponent has a chance to address them.
  13. Use your exhibits and excerpts of key testimony from the witnesses.
  14. Use PowerPoint, blowups of testimony, or charts to assist the jury.
  15. Use analogies, quotes and vivid descriptions to keep them interested.
  16. Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
  17. Judiciously use repetition as tool for emphasizing significant points.
  18. Have a clear call to action at the very end of your closing.

                       

            Don’ts:

  1. Don’t state your own personal opinion about the justness of your cause.
  2. Don’t misstate the evidence or law.
  3. Don’t mention evidence outside of the record.
  4. Don’t berate or personally attack the other lawyer to the Court.
  5. Don’t tell the jury to ignore the law.
  6. Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
  7. Don’t exceed the time allotted by the Court.
  8. Don’t personally vouch for a witness or your client.
  9. Don’t appeal to bias or prejudice.
  10. Don’t complain about the Court’s rulings or its treatment of you and your client.
  11. Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
  12. Don’t implicate a defendant’s right to remain silent in a criminal case.
  13. Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
  14. Don’t violate any orders granting motions in limine. (Can you say mistrial?)
  15. Don’t bore the jury or beat a dead horse.
  16. Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim.  The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
  17. Don’t wear any distracting clothing or jewelry.

The Jurisdiction of a State Court

Jurisdiction refers to the power of a court to hear and decide a case. The power of a state court to hear a particular case comes from the constitution and laws of that state. For a court’s decision to be legally binding, the court must have both subject matter jurisdiction (authority to hear a case involving the type of legal matter at issue, such as a contract or a personal injury) and personal jurisdiction (authority over the parties to the suit).

Subject Matter Jurisdiction

State courts generally have authority to hear cases involving transactions that happened within the state or the particular geographical area, such as a county, in which the court is located. However, there are a few types of cases over which the federal courts have sole or exclusive jurisdiction. These include bankruptcy and admiralty cases. 

The subject matter jurisdiction of a state court is usually widespread and includes everything from real estate questions to state tax disputes. Most states have special courts or divisions within a court set up to hear a specific type of case. Housing courts, family courts, and probate courts are examples of special state courts. If there is a county probate court, for example, that court would have power to hear all cases involving probate matters, such as contested wills, within the county.

Personal Jurisdiction

A court must have personal jurisdiction over the individuals and companies involved in a lawsuit for a decision to be legally binding on the parties to the suit. Generally, if an individual lives within a state, the state courts will have power to decide a lawsuit involving that individual. The same is true for a company. If the company is located within the state or does business within the state, a state court will have power to decide a lawsuit involving that company. Even if a company is not located within the state, a state court might still have jurisdiction over the company if the company sent mail order catalogs into the state or has other “minimum contacts” with the state. All states have laws allowing a suit against an individual who does not live in a state but who caused a traffic accident while driving through the state.

Service of Process

Personal jurisdiction over an individual or a company is obtained by service of process, which means giving notice of the lawsuit to the individual or the company. Notice of a lawsuit may be given in several ways, depending on what state statutes provide. For example, proper service may include serving the individual or a company officer with a notice in person, by mailing a notice to the individual or company, or by publishing a notice in the newspaper.