ArchivePage 2 of 207

New Law Proposes Overtime Pay For Salaried Workers

Approximately five million salaried workers may benefit from new overtime rules that are to take effect in 2016. Those who would become eligible for overtime pay of time-and-a-half include workers earning up to $50,440 per year.

Under current law, which has been in effect since 2004, salaried workers whose earnings exceed $23,660 annually, or $455 weekly, are exempt from overtime pay if they have managerial responsibilities. Thus, current law incentivizes employers to label salaried workers as “managers” so that the employer doesn’t have to pay those workers overtime.  Salary

Under the proposed legislation, the threshold at which several salaried employees would stop receiving overtime pay would more than double. The new law would automatically amend the suggested salary threshold on the basis of inflation or the rate at which wages increase. The legislation is reminiscent of a time when many more salaried workers were eligible for overtime pay. According to the Economic Policy Institute, in 1975, approximately 62% of salaried workers could receive overtime pay. By contrast, in 2014, only 8% of salaried workers were eligible.

Many workers in managerial positions are pleased with the proposed overtime rules, which means that they would be compensated for the 80 or 90 hours that they work during any given week. However, business groups are against any change to overtime rules because they claim that such an alteration would cause an increase in companies’ expenses, adversely affect customer service, and make it difficult for workers to move to a higher position.

According to Neil Trautwein, a vice president at the National Retail Federation, managers’ hours may be reduced so that they would not be paid overtime, and they would be unable to work additional hours or help out when the need arises. They would also have fewer chances to stand out from the other employees. In addition, the National Retail Federation believes that in response to the new overtime rules, companies will implement certain measures in an effort to lower their costs. Among these are:   compensation to several lower-paid white collar workers on an hourly basis; reducing their pay; and decreasing their hours or benefits.

Nevertheless, in limiting the hours that managers work in order to reduce overtime pay, more workers may need to be hired. Thus, the proposed rules will likely increase job creation, and give workers the impression that they are being compensated fairly, and no longer left with the feeling of being overworked and underpaid.

Personal Bankruptcy Filings May Decrease Due to the Affordable Care Act

If the recent trend in the state of Massachusetts is any indication, the number of people who file for bankruptcy is likely to decrease on a national level. That is because the number of people who reside in Massachusetts and who file for bankruptcy has fallen greatly. The significant decrease could be attributed to the state’s law that requires everyone to have health insurance. The law became effective in 2005.

The U.S. Supreme Court recently held that the Affordable Care Act (ACA) permits subsidies for individuals and families who meet certain income requirements and who buy health insurance via federal exchanges. According to a Northeastern University Law professor named Daniel Austin, as a result of a rise in health insurance throughout the country, there may be a decrease in bankruptcy filings on a national level.

Several studies have revealed that the principal reason people file for bankruptcy is medical debt. However, that is not the case in Massachusetts, the sole state in which medical debt is not the main reason for personal bankruptcy. Prof. Austin found that the primary reason for personal bankruptcy in Massachusetts is loss of income.

According to the results of Prof. Austin’s study, residents of Massachusetts who file for bankruptcy have significantly less debt than any other state in the nation. In Massachusetts, a person or couple who filed for bankruptcy in 2013 usually had medical debt in the amount of $3,041. In stark contrast, people elsewhere had medical debt that was in an average amount of $8,594. Based on the decrease in bankruptcy filings of Massachusetts residents due to medical debt, there will likely be a similar drop in such filings across the nation as people have less medical debt due to the availability of affordable health insurance.

Prof. Austin believes that it wouldn’t be a leap to suggest that the reform of health insurance in Massachusetts is the reason that the number of residents in the state who seek bankruptcy filings is decreasing at a faster rate than that of the other states in the country. For the last couple of years, the number of people who seek bankruptcy filings has been declining, in part, because of an improvement in the economy.

Included in Prof. Austin’s study was an assessment of 5400 bankruptcy cases that were filed between 2005 and 2013. Under bankruptcy law, those who seek bankruptcy filings are required to reveal their entire debt, including the amount and the name of the persons or entities to which they owe a debt. The study was also based on approximately 380 answers to survey questions addressed to attorneys and bankrupt persons.

A Breakdown of San Francisco’s Sanctuary Policy

san francisco sanctuary citySan Francisco’s sanctuary policy has recently come under scrutiny in light of the recent shooting of a woman named Kathryn Steinle. The 31-year-old woman was walking with her father on Pier 14 along the Embarcadero near the San Francisco waterfront when she was fatally shot by Juan Francisco Lopez-Sanchez.

The suspect had been deported five times, and had seven felony convictions. After having served 46 months for the felony of re-entering the U.S., he was sent from a prison in Victorville in San Bernardino County to San Francisco by the Federal Bureau of Prisons. When he returned to San Francisco, federal immigration officials requested that he be held so that he could be deported to his native Mexico. But the sheriff’s department did not honor that request. He was released on April 15th after drug charges against him were dropped.

While many have criticized the sheriff’s department for releasing Mr. Sanchez, the department was merely following San Francisco’s 26-year-old sanctuary law, under which the city does not honor requests for immigration detention. Sheriff Ross Mirkarimi stated that his agency released Mr. Sanchez in accordance with an October 2013 city ordinance that was signed by the mayor.

Under that ordinance, law enforcement officials “shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release” unless there is a very strict exception. According to the exception, the city is allowed to hold an inmate for immigration officials if he or she was convicted of a violent felony within the previous seven years, and is being held on a pending violent felony. There is nothing to suggest that Mr. Sanchez met either provision.
However, the San Francisco Chronicle gained access to city records that indicate Mr. Mirkarimi acted beyond the directions stated in the ordinance. Just two weeks prior to the transfer of Mr. Sanchez to San Francisco, on March 9th, Mr. Mirkarimi issued an order to the members of his staff forbidding all holds of inmates requested by federal immigration officials. His memo stated that the detainer policy of the San Francisco Sheriff’s Department is that Immigration Detainers from Immigration & Customs Enforcement (ICE) are not to be honored or booked. This represented a change from his previous policy, which permitted detainers in specific critical cases.

According to SFGate, an attorney named Freya Horne, who works with the Sheriff’s Department, stated that federal authorities should have acquired a court order if they wished Mr. Sanchez to be detained. Without a court order, he was to be released based on the city’s ordinance. Immigration holds are not perceived as orders that are legally binding; they are considered to be requests. In response to Ms. Horne’s statement, Virginia Kice, a representative from ICE, said that acquiring such orders would not be feasible.

Nevertheless, there must have been something that the authorities could have done to prevent this tragedy from occurring. While neither the sheriff’s department nor ICE seems willing to accept responsibility for the release of Mr. Sanchez, both must take steps to ensure that tougher measures are in place. Perhaps San Francisco’s sanctuary policy needs to be revised so that it does not protect individuals who repeatedly commit crimes, even if they are not violent crimes. Mr. Sanchez was first arrested in Arizona, where he was charged with “inhaling toxic vapors.” He was later arrested because of drug charges in Arizona, California, Washington, and Oregon.

Mr. Sanchez claims that the shooting was an accident because the gun, which he alleges he discovered wrapped in a shirt, fired, and he did not intend to shoot Ms. Steinle. Some have described what happened as an isolated incident, and that any change to San Francisco’s sanctuary policy will only serve to foster distrust on the part of undocumented immigrants toward authorities. And as a result, undocumented immigrants will be less likely to come forward in the event that they are victims of, or witness, a crime.

However, according to Jeff Stone, a Republican state senator who represents Riverside, there have been many other cases in California, Texas, and other states in which undocumented felons were not deported, and went on to commit egregious crimes. Mr. Stone has submitted a proposal for a bill to amend the 2013 California Trust Act, which currently restricts cooperation between local authorities and federal officials. If the proposed bill were to become law, such cooperation would be required in cases where undocumented immigrants who are being held are felons, particularly if they have been arrested on drug charges.

Class Action Lawsuit Survives Against Chrysler for Defective Clutch

Chrysler_logoIn a class action lawsuit against Chrysler, a federal judge ruled in favor of the plaintiffs on Monday, June 15, 2015, when he denied a request by Chrysler Group LLC to dismiss the class action alleging Chrysler of selling Dodge Darts from 2013 and 2014 with defective clutches. He found that the plaintiffs provided a sufficient description of the defect in their complaint. He also found that the allegation that the defect caused the vehicles to be unmerchantable, was sufficient.

Although the judge reduced the size of the class action, he rejected Chrysler’s argument that certain plaintiffs were in violation of Federal Rule of Civil Procedure 8(a) by failing to state a defect in adequate detail in order to permit Chrysler to defend itself. According to the lawsuit, the automaker was aware that the vehicles with manual transmissions had a defective hydraulic clutch system. It is also alleged that although Chrysler knew that the clutch system malfunctioned, and was marked by several problems and safety issues, it concealed the defect from customers and instead, resumed marketing the vehicles as “robust and reliable.”

However, the judge did not side with the plaintiffs completely, for he dismissed the claims of express warranty and a violation of the Magnuson-Moss Act to the degree to which the basis of those claims is a design defect. He ruled in this way because Dart’s express warranties do not include design defects.

The Magnuson-Moss Act states that a warrantor must reveal, completely and clearly, in language that is easy to comprehend, the warranty terms and conditions to the degree to which they are required by the Federal Trade Commission. According to the terms of the Act, any ambiguous statements contained in a warranty are construed against the one who drafted the warranty.
Moreover, under the California Consumers Legal Remedies Act, the judge dismissed the lawsuit’s punitive damages claims concerning Chrysler’s representation of the cars’ safety. The court found that a press release containing a vice president’s depiction of pre-market testing did not demonstrate that an officer or other person in a position of authority approved of Chrysler’s alleged wrongful behavior.

Nevertheless, the judge seemed to be mostly in favor of the plaintiffs, and hopefully, Chrysler and other automakers will be deterred from hiding their vehicles’ defects from consumers in the interest of increasing their profits. Surely, the cost of defending a lawsuit and the resulting award or settlement amount must exceed the price of taking preventive measures to ensure the safety of consumer products.

Accidental Drowning or Purposeful Murder: The Hudson River Incident

Angelika Graswald, 35, is charged with the second-degree murder and second-degree manslaughter of her late fiancé, Vincent Viafore, 46. She faces 25 years to life for the first charge and 15 years for the second. On April 19th, Graswald and Viafore took a kayaking trip on the Hudson River. Graswald is accused of tampering with Viafore’s kayak plug, causing the kayak to fill with water.

Angelika Graswald stands in court with Michael Archer a foresnsic scientist and her attorneys Jeffrey Chartier and Richard Portale ask for bail and to unseal the indictment against her at her bail hearing in Goshen, NY on May 13, 2015.  Ms. Graswald has b

Graswald’s Arrest
Graswald was charged with the death of Viafore 11 days after the incident. Police say that she was arrested based on the inconsistency of her statements that led investigators to be suspicious. Graswald reportedly made statements that implicated herself in the crime, which gave investigators probable cause to make an arrest.

Despite Graswald admitting to investigators “it felt good knowing he was going to die,” she is pleading not guilty. Part of her defense will center around an allegation that Viafore was intoxicated at the time of his death. Autopsy results are still pending.

Admissibility of Graswald’s statements
Graswald’s lawyer, Richard Portale, is skeptical about Graswald’s statements to investigators and will look into whether they were voluntary. If Graswald’s statements to police investigators were not made voluntarily, her Miranda rights may have been violated. Statements made orally or in writing in violation of a person’s Miranda rights must be suppressed and are inadmissible as evidence for trial. Graswald claims that after being read her Miranda rights, she made the mistake of continuing to speak to law enforcement officials and feels she was tricked into divulging information. Portale further claims Graswald, a Latvian native, still struggles with English and may not have understood her rights.

The right to remain silent during criminal interrogation is derived from the Fifth Amendment. A waiver of Miranda rights requires the act to be done knowingly, intelligently and voluntarily. Portale is likely to argue that his client’s limited English prevented her from properly waiving her rights because she was unable to understand her rights and consequences of waiving them.

The prosecution is likely to call attention to Graswald’s possible motives and to her erratic use of social media following the death of her fiancé. Prosecutors allege Graswald’s motive for killing Viafore was “…her only way out,” and to collect from his $250,000 life insurance policy. Graswald’s social media use consisted of posting selfies, playing with her cat and visiting an animal shelter in the days after Viafore’s death.