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Wednesday, July 26, 2017

FLSA an WAGE/HOUR laws -- what if the check got lost?



This is a common question for small businesses. I recently commented on a nation law board concerning this, and I think the question/answer is worth sharing.

QUESTION: I have an employee that I let go for bad performance. Her pay was mailed to her via USPS money order a few weeks ago. She contacted me claiming to have never received it. I placed an inquiry on the money order to find out of it has been cashed, and if so by whom and when. The inquiry can take up to 60 days. She has been made aware of this.

She contacted my clients claiming to have been defrauded and is threatening to contact the DOL. What can I do to protect myself at this point and my business as she is making false claims against me.


This is a mess! A few reminders -- you never pay an employee with cash (or, in your case, a money order). It is very hard to track, and very easy to steal. Secondly, you never send important documents without tracking -- certified mail.

In answer to your question, the employer is responsible for paying the employee. Period. Under DC law, payment should be made at the time of separation, or the next pay period at the latest. Federal law -- controlled by the FLSA -- requires payment of all hours. Failure to pay results in full pay, plus the amount being doubled, and possibly tripled, if bad faith is shown. Also, you will have to pay all attorney fees associated with the other side. Generally, a bad idea.

How to fix this? You need to provide her payment immediately. Get a signed release from her indicating she was paid. Have her come to the office for a company check and signature sheet. You can track prior money order to see where it went. If the money order was made out to her, and someone else cashed it, you can go after the check cashing location, or bank, for failure to verify signatures or ID. You don't want a legal fight on your hands AND have to pay the amount again.

Information on FLSA can be found at 29 USC 201-219. DC wage and hour laws can be found here: https://does.dc.gov/sites/default/files/dc/sites/does/publication/attachments/DOES_wage_hour_rules.pdf.

Have additional questions or need help? Call us! You can reach my firm at 1-800-579-9864 or 7022-402-2723. Or, send us an email: seanhanover@hanoverlawpc.com. We can help with all business and tax related questions -- including wage and hour issues.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Saturday, July 8, 2017

How to attack an ICE detainer -- a discussion

ICE Attorneys contemplating detainer law...or lack of it.


From a recent question by a fellow practioner -- worth sharing!

FACTS
Client given a 30 sentence in county jail with a 5 consecutive days at beginning and 13 weekends thereafter as per the County Judge's Order. TWO days before his released Martin County Fla Jail notified ICE (they have a detainer agreement) of the client's release. client is now being held him until ICE transfers him to a detention center.

I called the jail and demanded his release but was told by a sgt. that "it is a standing order by all judges" that whenever a detainer is placed by ICE, the detainee's sentence is to be served consecutively (rather than the weekends as per the judge's order) and at the end of it ICE will take him. I asked him where THAT came from and he said they have always done it like that. I asked him again for the law/authority and he told me to check with the judge.

I explained the detainer is good for 48 hrs only. He said they have the detainer and an ICE WARRANT. I asked for a faxed copy and sgt said NO. I called ICE and was told he is not yet processed and no DO has been assigned to case.

QUESTION
Is this true?


First, there are a couple of minor corrections I would point out. The IJ (immigration judge) does not sign a warrant. A warrant has to be signed by a federal or state judge after hearing (or reading) a statement of probable cause to believe a crime has or is occurring, and the warrant address that specific aspect of the crime (different types of warrants, obviously). Because an IJ lacks authority to hold a probable cause determination, they won’t be handing out warrants. It would be great fun if they did…talk about a federal case on its face! It is very rare indeed that any judge issues a warrant to ICE, as a state judge really wouldn’t have standing, and a federal judge rarely has time. It does happen for drug, gang, and trafficking cases, where ICE special units conduct raids. But most practitioners won’t run into this in the normal course of ops, and most of those cases end up in Federal Court anyway. It is more common to see a state police officer, with a state warrant, accompanying ICE officers (joint investigation). But again, that is usually for more severe cases.

Now ICE does issue detainers. A detainer is a demand, based on Federal Law, for a state or local authority to hold an illegal alien until immigration can pick him/her up. It is strictly an internal document, and the Agency jealousy guards them as TOP SECRET. Really, all that is on there is a phone number for a duty ICE agent. Unlike almost every other ICE/EOIR/DHS phone number, they actual answer that line quickly. They get really really mad if you call it. It’s good fun! You should try it sometime (assuming you can get a copy of an ICE detainer doc). The problem with detainers is that a state court has no authority over them (federal admin law), and the jail doesn’t really know what to do with them. BUT..state court does have authority over your fella’s detention. So if the jail holds him beyond 48 hours AFTER his sentence is over, then you have a habeas action and should file it right pronto. That usually makes the jail spit your guy out…but it’s a race between ICE and that hearing. If the jail plays hardball, by the time you’re up in Court, detainee is long gone to ICE hell.

What really got me chuckling was the jail’s unilateral modification of the criminal sentence. While it makes sense (i.e. don’t let a person out of jail who has an ICE detainer), it conflates Federal immigration law (immigration detainer) with speculation (ye olde flight) with a healthy dose of “you can’t change a state judge’s order just because.” Sounds to me like the Warden of the jail has taken immigration consequences into his own hands. Interestin’…

You have a pick of tools to go after the Warden. There’s the ol’ “Show Cause” order which, rarely, has a place in criminal law (outside of probation violations), but is quite tasty in this case. After all, the state is violating the Judge’s order. You can file a writ of mandamus to order the jail to honor the judge’s order. You can file a habeas action (obviously – for detention of your fella outside the bounds of the court order).

You’ll lose on them all, though. It would be great fun to tweek the jail, though! You lose because, ultimately, the jail has authority to modify the nature of the detention, so long as the length of the detention remains unchanged. For example, the jail could put your guy in solitary for violating jail rules. That would not take a court order to effect, even though it changes the nature of the detention. A jail has wide latitude to control the safety and security of its prisoners, and the state. But…you might get lucky!

Do you have a problem with how the Government has treated you? Call us! We're happy to discuss your case, and see if you have a claim. We can be reached at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, July 5, 2017

Check writing, Forgery, Uttering and what comes next (criminal law)

Original image at https://www.thebalance.com/how-to-check-a-check-315428


Recently, a question was asked on a law bulletin board regarding criminal culpability. While I answered the question on the Board, I think the question is a good one to share, given the frequency of client requests that are very similar.

I used my deceased father’s old checks when trying to purchase something at the store. The checks all had his name on them already (i.e. signed), but were blank. The cashier refused the check, and I left. I was stopped at the exit to the store and accused of forgery and uttering. If the checks didn’t actually get processed (i.e. no purchase was made), why am I under investigation/charged? I did it on accident

First, it is important to dispel a couple of common fallacies. Number one – it is almost inconceivable that a person would grab the wrong check, and then try to pay for something with it, when clearly, it was already signed by someone else. It is really important when discussing legal issues that (a) you DO NOT discuss anything with anyone other than a lawyer, and (2) you do NOT make up stories that make no sense. Although the story MAY make sense to you, it makes no sense to anyone in the legal field, and will almost certainly lead to charges.

What should you say when stopped by someone who questions you about an issue that could clearly be illegal? You are (a) very polite, (b) firm that you do not wish to discuss the matter without an attorney, (c) unwilling to allow any search or access to anything in your possession unless arrested or ordered by a judge (warrant). Sounds similar to Miranda warnings? They should! Although at first this may sound like you are being difficult, an could lead to further complication and charges – this is NOT the case. It is never wrong to politely decline to provide information other than your name, address where you live, and basic contact information. You only hurt yourself when you go beyond this. Most cases are lost because of what the client says. Remember this!

In your specific instance, you have three charges. Utterance – that is the attempt to circulate a document bearing false seals or signatures; forgery – that is the application of a seal or signature without the consent or knowledge of the owner; attempted fraud (bad check) – you drafted, or caused to be drafted, a check that you knew, or had reason to know, was not legitimate. You submitted that check for goods or service. All three of these are serious charges, and in the case of forgery and utterance, are felonies.

The most common defense to these types of charges is (a) consent or (b) mistake. Mistake is NOT the type mentioned in the question. “It was an accident” is no defense. However, if the mistake is that you understood you had consent, when in fact you did not, and your reliance on that understanding was reasonable, you may be able to mitigate or even stop the charges. Consent would also be clearly a defense – if the check owner indicated the check was drafted with their approval, and they authenticate the signature, then there is no forgery, utterance, or fraud. However, be careful! If you signed someone’s name, and then after the fact they consent, at the time of the drafting, it was still a forgery. A minor technicality, but important when forming the defense.

Do you need help with a criminal matter? Contact us! We have considerable experience in the VA, DC, MD area. We would be glad to meet with you for a free consult. Talk to us BEFORE you speak to the police.

Hanover Law, PC
Offices in Fairfax, VA, Resiterstown, MD, and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com