12900 N. Meridian Street
Suite 100
Carmel, Indiana 46030
Questions & Answers
Questions regarding Employment Law
1. What is “Employment At Will?”
Indiana follows the common law doctrine of “Employment At Will.” The “at will” relationship means that the employee or the employer may terminate the relationship at anytime, for any reason, or even for no reason at all. Of course, even in this setting, employers may not violate Federal and State law regarding employment. The “Employment At Will” doctrine does not apply where there is a contract between the employer and the employee for employment services.
2. What Federal statutory limitations are there on the employer’s rights in
the “at will” setting?
Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 USC 2000e-3, prohibits discriminatory treatment on the basis of race, color, religion, sex, or national origin. The Americans with Disabilities Act (“ADA”), 42 USC 12112, prohibits discrimination in the work place based on disability.
Disability is defined as “a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment”. The Age Discrimination and Employment Act, (“ADEA”), 29 USC 623 prohibits discrimination in the work place against employees who are forty (40) years of age or older.
Under the Family and Medical Leave Act, (“FMLA”), 29 USC 2615, eligible employees make take up to twelve (12) weeks of leave per year in which to recover from a serious health condition, to care for a close family member with a serious health condition, or for the birth or adoption of a child. The Fair Labor Standards Act, (“FLSA”), 29 USC 215 requires employers to pay at least minimum wage and to pay overtime at 1 and ½ times the hourly rate to qualified employees.
3. Where do I file a complaint and how long do I have to file?
In general, and in regard to Title VII, ADA, and ADEA, employees are
required to first file a charge with the United States Equal Employment Opportunity Commission (“EEOC”). Employees may also have the option to file a charge with the Indiana Civil Rights Commission in these circumstances.
The time requirements for filing a claim with the EEOC is generally three hundred (300) days; on the other hand, the time period in which to file a civil rights complaint with the Indiana Civil Rights Commission is generally one hundred eighty (180) days. It is safer to error on the side of caution and file the complaint within the one hundred eighty (180) day time period.
Once an employee files a complaint with the EEOC or the Civil Rights Commission, that agency conducts an investigation. Upon the conclusion of the investigation, the EEOC will issue a “Right to sue” letter. Once that letter is issued, the employee has ninety (90) days in which to file suit in Federal Court or they will be forever barred from bringing their claim.
FMLA and wage claims may be brought directly in Federal Court. The employee has the option of making their complaints to the Department of Labor at the Federal or State level as well.
4. Does Indiana law offer any similar protection?
Some of the Federal statutes have a mirror image in Indiana State Law. For
example, discrimination based on race, color, religion, sex, or national origin is prohibited by Indiana Code § 22-9-1-2, commonly known as the Indiana Civil Rights Act. Indiana law also prohibits discrimination based on disability under Indiana Code § 29-9-5 et. seq.
Discrimination based on age is also prohibited by Indiana law, Indiana Code § 22-9-2-1 et. seq.; however, Indiana’s prohibition is limited to employees between the ages of forty (40) and seventy (70). Wage claims may also involve state law, Indiana Code §22-2-2 et. seq., Indiana Code § 22-2-4 et. seq., and Indiana Code § 22-2-9 et. seq.
Indiana also offers protection for employees who are injured on the job under the Indiana Worker’s Compensation Act. Indiana Code § 22-3-2 et. seq.
Two types of retaliatory discharges are recognized under Indiana law. Employers are prohibited from discharging employees because they have filed a Worker’s Compensation claim. This type of claim is commonly known as a Frampton Claim.
The second retaliatory discharge recognized under Indiana law involves a discharge based upon the employee’s refusal to commit an illegal act for which they can be held personally liable.
5. Is retaliation prohibited by law?
Yes. Title VII expressly prohibits retaliating against an employee because
he/she opposed unlawful discrimination. The ADA and the ADEA have similar provisions prohibiting retaliation for opposing unlawful conduct.
It is important to remember that a retaliation claim may succeed whether or not the base claim of discrimination succeeds.
For more information regarding employment law, please contact Bob Smith at
(317) 814-4030, ext 111 or Rsmith@smithwade.com
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Questions regarding Estate Planning
Q. Will it be necessary to undergo "probate"?
A. If there is a surviving spouse, or if the decedent died with less than $50,000.00 of probate assets, it is generally not necessary to open a probate estate. However, even when a probate estate is necessary, there are streamlined procedures, and even benefits, to the probate process.
Q. How much will it cost to plan or handle my estate ?
A. The cost and time involved in planning or administering an estate depends on many factors, including the make up of beneficiaries, and the amount, mix and liquidity of the decedent’s assets. We bill on an hourly basis only for the work actually performed and needed, rather than a flat percentage of the size of the estate.
Q. How much will my beneficiaries owe in death taxes?
A Often times, little or nothing. A surviving spouse can generally qualify for the unlimited marital deduction, and death tax exemptions at the Federal level and for the state of Indiana are the highest they have ever been.
Q. What provisions should I make for my children in the event of mine and
my spouse's premature passing?
A Through age 18, a minor child's affairs are handled by a guardian. Careful consideration should be made with respect to guardian of the estate (finances) and guardian of the person (caretaking and raising) of minor children. Your preference as to who will be your minor child’s guardian can be stated in your will. After age 18, distribution of monies can be delayed by means of a simple trust.
For more information regarding estate planning, you may contact Jeffrey B. Cadwell at (317) 814-4030, ext 107 or jcadwell@smithwade.com
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Questions regarding Family Law
1. What are the legal requirements for initiating the Dissolution of Marriage process?
There are certain preliminary requirements that must be met in order to initiate a Dissolution of Marriage proceeding. One of the parties must have lived in Indiana for at least six (6) months prior to filing and in the County in which they file for the prior three (3) months. The Petitioner, or the person filing the divorce, only needs to allege that there are irreconcilable differences between husband and wife for the divorce to proceed.
2. How do I initiate the process?
The Dissolution of Marriage process is initiated by the filing of a petition by
the party referred to as the petitioner. When the petition is filed, the clerk of the court will serve upon the other spouse, in this case, the Respondent, a Summons and the Petition. The Summons will inform the other spouse that they are being sued for divorce and that they must respond to any Orders of the court.
3. How is a divorce resolved?
To the extent possible, it is recommended that the parties try to resolve as
many issues and differences between themselves as possible. This can be accomplished through informal or formal mediation during the divorce process. The parties may come to agreement regarding some or all of the issues to be resolved and present their agreement in writing to the court for its approval.
If there are unresolved issues or the parties simply cannot come to any agreement, the Dissolution of Marriage action is resolved at a final hearing where the parties present evidence and argument to a Judge.
Under certain circumstances, the parties may need to consider a preliminary agreement or a preliminary hearing to resolve issues during the pendency of the divorce. Such issues may include: temporary possession of the marital residence, interim payments of debts and liabilities, temporary custody of the children, child support payments, and parenting time related terms and conditions.
4. What issues need to be addressed in a Dissolution of Marriage?
Generally speaking, there are two categories of issues that need to be
addressed in a divorce. The first one relates to any children of the marriage. The second one relates to the property division.
The issues of custody, parenting time, and child support will need to be resolved, either through agreement or at a hearing before a Judge.
The resolution of property division issues will involve such assets as the marital residence, retirement plans, life insurance policies, personal property, bank accounts, business interests, gifts, and inheritance, among other things. In addition, any property division applies to debts and liabilities of the marriage as well.
In Indiana, all the assets and liabilities of the marriage make up the “marital pot.” The presumption under the law is that the “marital pot” shall be divided 50/50 between husband and wife, except where the evidence shows that the division should be otherwise.
5. How long will it take?
The court will not grant a Decree of Dissolution until at least sixty (60) days
pass after the filing of the petition for Dissolution of Marriage. It is more the exception than the rule that the divorce process is completed in such a short period of time. Each case’s facts and circumstances are unique. Therefore, a time period in which a divorce can be completed is significantly dependent upon the agreeability of the parties and their willingness to compromise.
6. Are all the issues in a divorce final?
All of the property division provisions of a Divorce Decree are final. In
contrast, any issues related to children of the marriage are always subject to modification by the court. Either party may petition the court after the Decree to modify custody, parenting time, and/or child support.
For more information regarding family law, you may contact Jeffrey B. Cadwell at (317) 814-4030, ext 107 or jcadwell@smithwade.com
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