Subpoena Power

Whenever a civil lawsuit commences in state or federal court, the parties to the lawsuit gain subpoena power.  The power is found in Rule 45 of the Federal Rules of Civil Procedure.  This means that they can use court authority to direct witnesses to testify or produce documents that may be, or may lead to, admissible evidence.

This power does not apply to other parties.  They are obligated under different rules to make facts and documents available.  (Rules 26, 33, 34 and 36 for example).

A subpoena also acts as a tool allowing a party to obtain  confirmation that the opposing party is producing all that is requested of it.  For instance, in a prevailing wage case by a former employee of a subcontracting construction company, a subpoena to the general contractor for proof of all prevailing wage contracts with the sub in the relevant time period forces the construction company to diligently produce accurate records.

This is so because the former employer does not know what the contracting company will produce.  Unless they are colluding.  Not very likely that.  Companies and people not party to a lawsuit like to keep it that way.

Subpoenas issued to vendors and customers of a corporate defendant are unnerving to all concerned.  Responding or objecting to them can be expensive.  The effort to object or the ease of compliance can be telling too.  In addition to their discovery value, they increase pressure on parties to more strongly consider the value of settling earlier.

Use subpoenas early to make sure you are getting a complete picture of the other party and its claims or defenses.  If other benefits flow from the effort, then so be it.  There is of course the risk that your subpoenas do nothing but irritate otherwise helpful witnesses.  This is a real risk, so consider the costs you may incur before flexing your discovery muscles.







of the completeness of production required of opposing parties.

Getting Work as a Lawyer

A recently admitted lawyer in Ohio had gone on the Bar Association's Solo and Small Firm list serv and posted a request for tips on how to get work.  This was my response, for what it's worth:

 

"Dear Amy:

 

While marketing your services as a lawyer is a process hampered by ethical land mines and a tradition of waiting to be called, there are some easy, inexpensive ways to get work.  First though, decide what broad kind of work you can do.  You can't take on work that you aren't able to do or aren't reasonably able to get prepared to do.

If you want criminal work, get on the court's appointment list.  It's low paid but filled with opportunities for experience and exposure.

For civil work, the biggest bang for your buck may be the local bar association's lawyer referral service.  Dayton's is 175 a year plus 10% of fees earned.  It is so worth the cost. Hundreds of times over.

Go to bar association events.  Go to the national ABA section events if you can afford it.  If you go, and you introduce yourself and make connections, then you quickly become a nationally known attorney.  Have a quick response to "what do you do?"  Be friendly with other lawyers.  Refer work to them.  Volunteer in a group or groups that do something you like. Speak up and take some leadership.  It isn't always quick, but exposure + competence = work.  Always be grateful for referrals. Call or send thank you cards to your referral sources. Refer back and speak well of them.

Write a blog, get a website that links to your blog, and then use a twitter account and a linkedin profile to mention your blog or website.  Write often and be real.  Read blogs by James Altucher.  Read his book "Choose Yourself".  It's five bucks on Amazon and it may change your life.  

Do good work, bill fairly, and deliver more than you promise.  Always, always do what you say you will.  Don't lie or cheat.  Lawyers and judges will know, and it will kill your career.  Don't chase low profit work or clients.  Analyze your practice areas for the highest profit for the least amount of time and effort, and then do that work most of the time.  Develop an expertise. Love it. For me that is FLSA litigation. For you it will likely be something different.

Charge a fee for consultations too. Make yourself valuable from the very first meeting.  If a potential client balks at 50-100-150 for your initial time, then you don't need them.  Exceptions of course, but charge as a rule.  

Finally, go to Dave Lorenzo's website and follow him on Twitter @TheDaveLorenzo, He is undoubtedly the best legal marketing mind.  Read all that he writes and do just part of it. You will get work and clients.

I do these things.  I believe in them and I have been successfully self employed, with luck and gratitude, since 2001.  

Good luck Amy.  Contact me if you'd like any more info. Although I think that is all that I have."

Smoke 'em if you got 'em

Old movies with soldiers often saw drill sergeants relieve their squads with a jovial "at ease smoke em if you got em".

The same can be said for affirmative defenses.  If you have them as a defendant, then you should use them. Like the cigarettes in those old movies, you might not get to use them if you get killed in a battle.

For litigators it's more figurative.  But the civil rules of civil procedure in some state and all federal trial courts tell defendants that if they fail to raise affirmative defenses (with some substance thank you Iqbal and Twombley) then those defenses are waived and barred from later use.

Some lawyers may feel that they can "reserve the right to add defenses" in their answers.  Don't bet on it.  There is no such right to reserve.  The civil rules and the case law are fairly clear on this point.  Aggressive and unyielding plaintiffs' counsel will not stand by while affirmative defenses like good faith error, or acting on counsel's advice, or the plaintiff was exempt from overtime coverage because they were not performing the duties of an employee are raised well after the answer is filed.

Factually unsupported affirmative defenses are now just as troublesome as absent defenses. Thanks to the US Supreme Court's decisions in the Iqbal and Twombley cases (search those names and the cases will appear in google or any other halfway competent search engine) a formulaic recitation of elements of a claim or defense will be vulnerable to a motion to strike.

Use em if you got em.  If you don't, then expect my motion for judgment on the pleadings or a tough row to hoe at summary judgment and trial when your defenses are long buried by waiver. 

Professional conferences pay for themselves

Professionals spend years in school learning their trade.  Then after they enter their profession they are often required by their professional licensing organization to keep current in their field.  Keeping current for lawyers means taking ten to fifteen hours per year of continuing education.  It is often expensive and seemingly unproductive.

It does take time, true.  But to those who would call it unproductive, because it can't be billed to a client, I would say think again.

While taking on my first Fair Labor Standards collective action case more than twelve years ago, I was overwhelmed. Fortunately, the National Employment Lawyers Association was holding an FLSA focused conference that year.  Too bad it was in San Francisco.  That was a long way from my little shared office space in Middletown, Ohio.  It appeared too expensive and risky.  I calculated the benefits I hoped for against the clear monetary expense, and got my airline ticket west.

I met some extraordinary people. Authors of practice guides like Janice Kearns, and nationally known litigators like David Borgen.  I also met a super sharp lawyer from NYC named John Bernstein.  Nearly a year after that meeting, which gave me more than enough info to powerfully settle my case in Ohio's southern district, I got a call from a class action lawyer from New York.  He wanted local counsel in Ohio and Mr. Bernstein referred him to me.

Since that time I have done two more class cases with this lawyer, with settlements in the many million dollar range.

I didn't get those kinds of cases because I was in the fray already.  I got them because I took a chance and went to a national lawyers conference and made some friends.  That trip has paid for itself hundreds of time over and has been an inspiration to me ever since.

The American Bar Association's class action and derivative claim committee had its annual class action institute in Boston this past week.  I went for the great agenda and to meet up with some friends I made at a litigation conference earlier this year.  I was thrilled by the quality of the content, but even better than that, I was fortunate to meet some incredible lawyers who work all over the nation and the world.  We may not talk daily or even monthly, but we now have connections built face to face in a forum that allows for real evaluation.  Your MarHub profile or website copy is like smoke in comparison to the quick and certain impression you can take, or present, talking about the law or judges or sports teams with your potential co, or opposing counsel.

Go to your national professional meetings.  Join the players on the biggest stage you can manage.  They are just like you.  It is likely that you will be welcome into the cast just by virtue of showing up with a good attitude.  These conferences bring all attendees up. Sometimes in ways you don't see coming.  Don't wait. Go to the next one.  Do it.

Congress affects choice of forum in FLSA cases

I have a couple unpaid overtime cases in the complaint stage. It is my understanding that the federal courts are feeling seriously underfunded.  The pending government shutdown is threatening to freeze pay and lead to furloughs.  This potential slowdown in my wage and hour forum of choice has me concerned.  While the Fair Labor Standards Act provides concurrent jurisdiction to state courts, neither judges, nor counsel who are commonly called to appear in county common pleas courts seem well versed in the procedures and risks presented by FLSA litigation.

The state courts do allow things to move along more quickly in the early stages of the case, particularly with discovery.  Federal rules of procedure prohibit formal discovery prior to the discovery plan conference which may not be for ninety days or more after the complaint is served.  Under Ohio rules, interrogatories and other paper discovery can be served with the complaint.

I think that under the circumstances of threatened funding for federal courts, a diversion to state court may be the way to go.  It requires more time spent educating the court and counsel not used to FLSA litigation, but the cases will not be held hostage to congressional foolishness.

Ironically, my state court is smack in the middle of House Speaker John Boehner's Ohio district.  If he were able to do his job, then I could rely on the federal courts.  But he can't. So neither can I.

Personal Injury

People get in car accidents all the time.  They get hurt, and then they sue the driver of the other car.  On a daily basis, thousands of lawyers are looking for the opportunity to represent someone who was injured.  They're known as trial lawyers, personal injury lawyers, accident lawyers, wrongful death lawyers, Plaintiff's lawyers, even ambulance chasers and shysters.  All are titles attached to those who work, usually on no more than the belief that they will prevail, to recover medical costs, lost wages and an amount of money to compensate an injured client for their pain and suffering.

I do not work in the personal injury area of law.  Almost never.  However, in the course of representing people fighting about their pay and employment rights, an occasional car accident affects my employee client and I am asked to help.

In a car accident, the driver doing the injuring is usually protected by an insurance company.  Insurance companies, contrary to their television commercials, are not good hands, problem solving, double check discounting, Aussie geckos.  They are businesses with ruthless, bottom line driven employees whose job is literally to keep an injured party's recovery to an absolute minimum.  Insurers seem to view every injured person as a fraud, cheat and liar.  They are out there, but the generalization has made the process painful.

Remember, insurance companies take money in from their customers and then invest that money, called a premium.  The less they pay out in losses, the more the insurance company and its employees get in profits, bonuses and perks.  I don't begrudge a business its profits, but you gotta understand insurance is designed to deny the existence or size of a loss. 

My client was recently reminded of that business purpose.  She was injured in a car accident.  She had no obvious injuries, but had pain for years.  She still does.  Sadly, her evidence and the location of the court and its stingy jury pool, along with the costs of medical testimony made the likelihood of her prevailing in a court case very small.  The neighborly insurance company that was there with a minimal amount of money and a big smirk knew the cost of litigation would outweigh the likely verdict.  So rather than pay a fair amount of compensation for the loss, the company bet the farm that my client would not risk her farm.  The insurer was right.

You can't see the pain of a toothache on an X-ray.  Nor can medicine say with certainty whether any other pain is present.  Doctors can't test grief and depression with an MRI.  Sometimes the pain and suffering and despair from an injury simply cannot be seen by modern medicine.  Is it any less real?  Is it any less painful for its camouflage?  No.  But to insurers, their captive and well paid doctors, and to many jury pools, it might as well be a big lie.

It may be a fight worth having.  The battle to show that pain is real even without shattered bones or lost blood.  But not by me.  I am back to my arena now.  Saddened, chastened and glad to not be a PI lawyer. 


  

NSA intercepts everything - no privilege is safe

Well the National (in)Security Agency has mucked it up.  With this revelation NSA cracks all it is clear that the Internet's most familiar service, i.e., email, is NOT a method of secure communication with clients or other counsel.

Back to US Mail and Fed Ex.  The Internet revolution was just perverted by our friends in Washington. I appreciate a fair and well enforced scheme of laws, rules and regulations.  Most lawyers count on that stew to make a living. However, I cannot accept, support or appreciate an unbridled abrogation of my legitimate privacy expectations.

This delusional and self protecting government madness leaves many frustrated and in despair.  I am at a loss myself.  The helplessness is unwelcome and unfamiliar.  I am unsure how to fix this pervasive problem, but I will be looking for a solution.  I hope everyone else is too.

Contractor or employee? Still a burning question.

While I generally represent employees in wage and hour lawsuits, I sometimes represent employers. They want my expertise and my perspective as a plaintiff's attorney.  I am often reluctant to do so, because it forecloses them as potential defendants in the future.  Nonetheless, some small companies are my clients and I can help.

These little companies are start ups, or they were started by a single man or woman doing a job who then needed help.  They put someone to work and then pay them like they themselves had been paid.  That is to say with a flat rate, as a contractor.  These new employers often believe that if they pay someone like a contractor, and tell their employees that they are actually contractors, then voila, they are contractors. 

Oy vey.

In fact, the employer and employee can't make that decision between themselves.  An employee can't waive his status as an employee, nor can he release his employer from liability to pay overtime or SSN benefits, or Medicare, or payroll taxes etc.  If the employers are wrong, then they can find themselves facing hefty IRS claims with fines and penalties, and similar claims by state taxing

authorities asking about where all the withholdings are.  In addition, some of these new employers are in businesses that lead to on-the-job injuries.  If the employer was calling their roofing workers contractors, for instance, and not paying workers compensation insurance, and that worker falls and hurts himself, and then wants medical expenses and lost wages, then the employer will suddenly find that saving a few bucks on payroll taxes has ballooned into a major loss.

The question is control.  States often have statutory definitions of employees and contractors.  They usually employ a control test.  Basically stated, if the person paying for the work provides the work, the tools and resources, controls the worker's hours of work and can discharge the worker for any reason, then the worker is controlled and is an employee.  That classification triggers statutory responsibilities and extra costs. But the extra costs are a fraction of what they could be if the employees are misclassified. 

Often the employer and the "contractor" are okay with their relationship.  The employer has no costs other than paying a straight wage to the worker, and the worker pays no taxes or other withholdings up front.  They may even be getting paid cash.  Everybody is happy.  It's when the relationship sours, usually when someone gets fired or hurt, that the wages of sin are collected.  And it can be an unholy amount of wages.

It is much safer, and less costly and dangerous, not to mention ethically superior, to err on the side of employer/employee rather than contractor/sub contractor.  If it's close, make them employees.  If you have any questions about what's close, then email or phone me.  www.langendorflaw.com.    

The FLSA loves employees and their lawyers.

The federal Fair Labor Standards Act, also known as FLSA (pronounced Full-sa), is the law that requires employers to pay employees overtime wages for weekly hours worked in excess of forty.  It has been around since 1938, with some modifications on the way.

Several employee friendly clauses were built into the law and its regulations.  There have also been thousands of court decisions that have added weight to the statute.  All that being said, the FLSA has become an extremely useful tool for employee representatives.

A couple of quirks that a lawyer or an employee should know:  Employers can't shield themselves from personal liability.  Very often large and small businesses are incorporated into corporations or limited liability companies.  These legal creations usually insulate officers and owners from financial liability for actions of the corporation.  However, the FLSA broadly defines "employer" as any entity or person that has control or influence over the employees' hours of work and pay.  I have surprised many owners and managers and their lawyers by attaching personal liability for unpaid wages.

Next on the list of powerful benefits is the requirement that employers maintain records of hours

worked by, and payments made to, their employees.  The law requires a rolling three year maintenance of this information.  When there is a dispute about whether an employee worked overtime, an employer's failure to produce the records of hours worked and pay earned is a killer.  The law specifically requires that the employer maintain them.  Courts have consistently held, over decades, that in the absence of contemporaneously created records, the employee's estimate of hours worked controls.  In the absence of specific evidence to contradict the employee's estimate (like time cards) the Court will allow the employee's estimate to stand as the amount of hours worked.  An employer can't complain about the estimate when they fail to keep the lawfully required records.

Even employees who are classified as salary exempt should have time records maintained for them.  At a minimum the smart employer will record that they worked the expected amount of hours in a work week. If there is any doubt about whether the employee is exempt from overtime, even a shred of doubt, then the conservative employer will keep detailed records.  

Rounding out this incomplete list of unique FLSA features is the liquidated damage and attorney's fees provision.  Under §216 of the FLSA, an employer who is shown to have violated the law is required to pay the back wages, an equal amount in additional damages, and the employee's attorney's fees.  Congressmen in 1938 expected that the unpaid wages may be less than the attorney's fees, and Courts have consistently awarded fees based on comparable attorney rates in the geographic area where the case is tried.  Needless to say, the awards of fees can be significant. 

An employer and his lawyer ought to take claims of unpaid overtime very seriously from the first moment they are raised.  The risks of allowing litigation to proceed can well exceed an early payment of the wages that should have been paid on demand and investigation.

I had a case a few years ago where I was trying to get the employer's attorney to discuss a settlement for my six employee clients.  The attorney was unaware of the FLSA risks and finally said "you're being tiresome, go ahead and sue us."  I did and got an award the defendant is still paying, with attorney's fees in excess of the back wages. 

The FLSA is the best friend to an employee and the employee's lawyer.  It is still not very well known by employers and their lawyers, but 7,000 federal cases a year are bringing them around.  The bottom line is that is best to take allegations of FLSA violations very seriously and very quickly, before attorney's fees exceed what any employer would have anticipated.  

More information available on my website:  www.LangendorfLaw.com

Glorious blatant misclassification

Employees misclassified as independent contractors present great opportunities for major recoveries of unpaid wages and overtime.  

Undercapitalized or greedy contractors bid jobs low on the basis of low cost labor.  They will bid low because they know they can pay their laborers straight time for their hours, no matter how many, and most of those laborers will be glad to be getting paid.

Some contractors tell their employees that they will be classified as contractors and will not get unemployment insurance or workers comp. or have taxes taken from their pay, or get overtime.  The employees think this is fine.  All they hear is "no taxes." 

Prevailing wage states require contractors working on state funded jobs to pay their employees an inflated wage similar to what the local union members would get for the same work.  It's an incentive to hire union members.  The catch is that independent contractors don't have to receive prevailing wage.  They get paid for the job.  So, unscrupulous subcontractors purposely mis-classify their employees as subcontractors and then deny them the prevailing wages they are due on the grounds that they are not employees and are merely getting paid for the job. 

Even when they think they are right, they are wrong.  Some of these contractors will even issue paychecks from their in-house payroll system, to their "independent contractor" employees, showing pay for say 56 hours at regular pay for a week.  This is printed above the "overtime" line which shows 0 hours and $0.  That's 16 hours of overtime paid at the regular rate.  This violation sets up damages equal to 16 hours at the regular rate.  And that is just for one week.  Think three years of this nonsense, for multiple employees, and add in attorney's fees.  That's right, it gets big fast.

These willful violations of the Federal Fair Labor Standards act lead to three years of trailing liability and liquidated damages, not to mention attorney's fees.  Thanks to Zavala v. Wal Mart Stores, an unpaid overtime case out the federal District Court of New Jersey, liability for unpaid wages can extend to the general contractor or the owner of the job.

This kind of case makes me tingle all over. 

Offers of Judgment

Rule 68 of the federal rules of civil procedure operates to put plaintiffs suing for damages on a defensive footing.  If a defendant wants to shake a poorly financed plaintiff off their attack, then the defendant will make an offer of judgement.  In an unpaid overtime case brought under the Fair Labor Standards Act the offer has to include an amount of damages AND an offer to pay the plaintiff's attorneys fees. This damages plus requirement is a function of the mandatory fee shifting required by the FLSA.

The offer has strict time limits and because it is made by letter from defendant's counsel to plaintiff's counsel with varying terms, it can be confusing in its form.  Offers are enforced using the principles of contract law and they are often effective.

I hate them.

Today finds me working on a motion to certify a class/collective action in an unpaid overtime case in the Federal Southern District Court of Ohio.   The issue is whether the employer's shifting of a seven day workweek, seven, twelve-hour-a-day workweek at that, over two calendar weeks, without paying any overtime, is lawful.  I say no.

Of course the employer says "Sure, it's lawful.  We can designate any period as a workweek.  Haven't you seen the regulations that say workweeks don't have to be the same as calendar weeks or pay periods?" while citing to 29 CFR 778.105.  "Look at the regulations Langendorf," they say.

I have.  I conclude differently.  The regulation that says a workweek is a seven consecutive day period is the period upon which overtime is calculated and each workweek stands alone. 29 CFR 778.104.  My clients work a seven day on, seven day off schedule repeatedly.  The employer calls it a "seven on seven off" schedule.  They don't call it a "three off, four on, three on four off"  schedule.  It's seven on seven off.  If the employees worked Sunday to Saturday, they'd get 44 hours of overtime pay. The way the employer has interpreted the workweek regs, the employees get no overtime at all.  Despite being subjected to a grueling schedule the likes of which the Fair Labor Standards Act was supposed to eliminate, BY ITS OWN TERMS.

The relevant regs have been interpreted in favor of employers, for the most part.  But this misuse, this cheap end around, needs to be changed.  I'm on it.

Independent Contractor... or not?

Employers in many industries like to call their employees independent contractors.  Construction, sales, landscaping, computer services, law even.  The reason?  If someone is classified as a contractor, then there are no unemployment insurance bills to pay, no workers compensation contributions, no employer payroll contributions and no Social Security contributions.  The employer gets work done at a fraction of the cost of employing an employee and takes no responsibility for the lawful contributions to society that being an employer requires.

The rub is that the employer still wants to CONTROL the person they call a contractor.  Control is the essence of the employment relationship.  A contractor gets to work when he feels like it.  He has a job to do and he does it on his own time, subject of course to contract deadlines.  An employee has to work regular hours as determined by his employer.  A contractor often works for many employers.  An employee, not so much.  Employees usually work one job.  Sometimes two, but then generally in different fields.  Like working at IBM during the day and at a bowling alley at night.  Contractors bring their own tools to get their jobs done.  They bring in their own supplies and help.  Employees use their employer's tools, their employer's resources and their coworkers to get work done.  Employees are guaranteed minimum wages and overtime for weekly hours worked in excess of forty.  Contractors have no such protection.  They make as much or as little profit as they can squeeze out the contract price and they sure don't get Social Security contributions from the person for whom they perform work.

If you are offered a job and the employer says you will be classified as a contractor, at an employee like pay rate, then look long and hard at that employer and the offer.  Unless you intended to be a contractor, working on your own, without any support and for more than one employer, charging what you thought you should be paid, and without getting any payroll or Social Security contributions, then you might just want to clarify that relationship before accepting the position.  Or you could just charge a contract rate and come in late to work. 

Working Overtime

Donning and doffing is a term of art used in unpaid overtime lawsuits.  It means the activity some employees undertake before beginning their usually dirty jobs.  They don protective suits before starting work and then doff those soiled suits before going home for the evening.  It is a time of changing from one status, e.g., father, mother, band member, etc., to another, less desirable status, e.g., employee.

People get paid to change their clothes when the change is a necessity for the employer.  Think radioactivity suits, or heat suits for a steel mill.  An employer could not send a radioactive suit home with the employee, could they?  Anyway, this isn't about clothes, it's about change.

I love unpaid overtime cases.  I sue companies for exploiting their employees.  They tell workers they don't pay overtime.  They tell them they are contractors when they aren't.   I love getting my employee clients paid all the back pay they are due plus all of my fees.  It is a great feeling.  But I can't help but to wonder about what my narrow focus has cost me.

There is always opportunity to change and profit from the change.  For example, the changing view of interns in the eyes of the law.  Recent cases in federal courts are casting doubt on the long time practice of using unpaid workers to perform gopher type duties while calling them interns.  They aren't learning anything but how everybody likes their coffee and how to un-jam the copier.  Both useful skills, but not educational for credit.  Too bad, but that change may see ways of business changing and some big back pay awards.

Certainly this  may be a change in overtime from which to profit.