So your employee wants to sue you over wages...

Hanover Law was contacted by a local business owner who was suffering from an FLSA problem. I share this hear, as it may be helpful to others suffering from the same issue.

I am a deli owner and one of my employee sued me for minimum wage and overtime. She wants us to pay over ten thousand.

However, there was an agreement on the amount of her wage because our employee wanted the paycheck in cash. We do have the recording of it, and I just wanted to know if there is anything we could do in defense.

Fair Labor Standards Act (FLSA) violations can be nasty, and you need a lawyer to get your through this with a minimum of pain. By way of overview -- generally, if you did not pay an hourly employee the appropriate number of hours, you can be liable for up to three times the missing amount (including overtime). Where the failure to pay was not willful (and that's another kettle of fish as to how the Government defines willful), the amount owed is two times the missing amount. Additionally, you will be responsible for all attorney fees (by statute). See 29 U.S.C. 203(m) [definition of "wage"], 29 U.S.C. 211(c) [description of record keeping requirements], 29 U.S.C. 216(B) [penalties for failure to comply].

There is a formulary for handling these types of cases. It appears you tried to classify someone incorrectly. Because the FLSA is a statute, you cannot "contract" out of it. Either your employee meets the definition, or he/she does not. While independent contractors have traditionally be defined by the US Tax Code, as a rule, the hallmark of independent contractor is the degree of control. Did you instruct your employee on what he/she was required to do, and how? Did you provide the means to do the work?

You need to nip this quickly to keep potential liability down. If you have a grounds for defense, I'm happy to discuss it -- but that is not common in most instances. Usually you get in this situation because the owner sought to keep expenses down, etc. What we do as your attorney is minimize damage and prevent a formal lawsuit that will cost you even more in attorney fees.

If you have a question about commercial/employment law, contact us! We have been handling civil matters in DC, VA, and MD for years -- both in Federal and State courts. Ask us! You may reach us 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. Joey Tutone, Esq. Charlet Herr, Practice Manager Catherine Aguirre, Marketing and Bilingual Specialist
1-800-579-9864 admin@hanoverlawpc.com

Competency to stand trial - criminal law

I recently answered a question posted by a fellow attorney on the criminal defense chat boards. I'll share the discussion here:

Question:

I have an initial appearance for a client in Ohio state court charged with rape of a four month old. He has been adjudged an Incompetent Adult and is under guardianship.

My questions are (1) without a criminal standard competency to stand trial/ competency to understand his rights, may the court proceed with the initial appearance, and if it tries, would it be appropriate to object for the above reasons; and (2) do I need to go and find his guardian and ensure her presence at the initial appearance to ensure that the ward's best interests are protected under the probate/ guardianship umbrella?

I have dealt with competency issues in DC Federal and DC Superior Court. Our PDS maintains a really excellent guide to criminal defense, and I’ll confess to relying on them when handling these types of issues. From their guidance:

PDS DC Criminal Defense Guide – Section 3.2(I)(A)(1)
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• Competence to stand trial requires that the accused have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,” and a “rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960).
  
• Trial of one who is incompetent violates due process. Cooper v. Oklahoma, 517 U.S. 348 (1996); Medina v. California, 505 U.S. 437 (1992); Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966).
  
• It is not enough for the individual simply to be “oriented to time and place and [have] some recollection of events.” Dusky, 362 U.S. at 402.
  
• A person who “lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope, 420 U.S. at 171.

Unless a defendant is competent, the State cannot put him on trial. Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.

Riggins v. Nevada, 504 U.S. 127, 139-140 (1992) (Kennedy, J., concurring) (citing Drope, 420 U.S. at 171-72).

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Specific to your case, I would imagine the State would argue that your client is a threat to the community, and that no safe guards could guarantee that he would not be a danger. At the initial appearance, if you lack proof of incompetence to prove to the Court (you mentioned her was previously adjudged incompetent – but the exact meaning of that might vary from the level of incompetence necessary to vitiate criminal culpability) that the client cannot proceed, a motion for competency determination combined with a plea of not guilty based on inability to stand trial (Dusky standard) should get you through the initial hearing. In terms of detention (if required – and be prepared for it, given the repugnant nature of the allegations), the argument would be (a) home detention to avoid harm to the mentally incompetent adult in the detention facility, (b) supervision by the Guardian to ensure compliance with GPS home detention monitoring. If the 4 month old lives in the home where your client resides, that is another kettle of fish. Absolutely have the Guardian present. That individual can testify to the (a) competency of your client, (b) the reason a guardian was appointed in the first instance, (c) an what safeguards can be put in place if the court releases your client on home detention pending a competency hearing. You need to be prepared to argue (even over the Guardian) that the court has appointed a guardian for the purpose of ensuring the safety of both your client AND the community. If the argument against dangerousness is unsuccessful, then a request for commitment to an inpatient psychiatric facility would be the second option. (I can probably dig up a cite for that somewhere if you need it).

The argument would be that an individual who is not capable of understanding the charges against him, cannot be then detained on the basis of those charges. That’s a Drope argument, and trumps state law. If the Court refuses this, a habeas hearing would be appropriate.

If you have a question about criminal law, contact us! We have been handling criminal matters in DC, VA, and MD for years -- both in Federal and State courts. Ask us! You may reach us 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. Joey Tutone, Esq. Charlet Herr, Practice Manager Catherine Aguirre, Marketing and Bilingual Specialist
1-800-579-9864 admin@hanoverlawpc.com

DUI, Drugs, and travel outside the US (immigration) -- what the heck!?

The Trump Administration has nothing on anti-immigrant sentiment from the lat 19th century. Mr. William Windom was Treasury secretary at the end of the 19th century. In the 1880's, he proposed making Ellis Island a holding location for European immigrants. It was not popular, for among other reaons, the problems they brought and the jobs they took.
See: http://collections.mnhs.org/MNHistoryMagazine/articles/51/v51i03p099-109.pdf

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

An attorney at the firm presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's (ye olde attorney) discussion points:

a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may reach us 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. Joey Tutone, Esq. Charlet Herr, Practice Manager Catherine Aguirre, Marketing and Bilingual Specialist
1-800-579-9864 admin@hanoverlawpc.com

Exception to Discharge -- attacking bankruptcy filings in Federal Court

Source: https://www.americanbar.org/publications/blt/2016/10/02_maurice.html

I was recently asked to discuss how the heck you could challenge a person filing for bankruptcy. The most obvious answer is by showing they are hiding money. Nail them with that, and it's "game over." However, often, that is not so easily proven, nor necessarily the case. There are so many warrens in bankruptcy court, that it is much easier to hide than most people think. Enter the 523 exceptions!

How does it work?

If you are passed the filing deadline for exceptions to discharge, you will need to show good cause as to why the date was missed. Discharge is covered under 11 USC 523. There are six of them that matter most in commercial context:

• 523(a)(1): Taxes and duties exception


• 523(a)(2): obtaining loans, credit, or money by (a) false pretense as to financial position, or (b) through writing (applications)


• 523(a)(3): Failure to list creditor in a timely fashion in bankruptcy proceedings, such that the creditor could not contest


• 523(a)(4): fraud or defalcation of a fiduciary (or fiduciary duty)


• 523(a)(5): support (child/alimony) obligations


• 523(a)(6): willful or malicious injury

There are additional ones, but they get really obscure (home owner associations dues, and government obligations).

Generally, for corporate battles (partnerships, etc.), it ends up being under 523(a)(4). For debts incurred through fraud – 523(a)(2). For punitive damages or exemplary damages mandated by a Court – 523(a)(6).

I’ve won on 523(a)(6), and lost on 523(a)(2) and reached a draw (Settlement) as to 523(a)(4).

Here, however, because the filing is untimely, you would have to show good-cause to re-open the window. Service is popular, as is failure to notify the creditor at all. Also, manifest unjustice would be a good argument, but I don’t see it in your case.

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. Joey Tutone, Esq. Charlet Herr, Practice Manager Catherine Aguirre, Marketing and Bilingual Specialist
1-800-579-9864 admin@hanoverlawpc.com

Analyzing Prior Removal Orders -- or are they? (immigration law)

by LALO ALCARAZ on JULY 3, 2014 in CARTOONS, EL NOW. See: http://www.pocho.com/la-cucaracha-you-must-be-this-tall-toon/

A fellow practitioner asked a question regarding deportation and future relief. I thought the topic was worth discussing here.

Client came to me because he had received a notice to appear (NTA). Initially, I was pleasantly surprised, base on his equities. He had been in the US since 2002, no criminal record, 4 USC children, filed taxes and requisite hardship for cancellation of removal. Then the other shoe fell – he had been deported in November, 2001 and came back within weeks (early 2002) and hasn’t left since. My initial question was why he had not been given a reinstatement of removal and an expedited removal. Instead he received an NTA in May 2016 with a court date in late May. What is happening here?

Great question – and very frustrating, I know.

The code section you are looking for is 8 CFR 241.8. Other than withholding of removal (under asylum grounds), and CAT, along with a couple of obscure South American/Central American Acts, the alien ain’t eligible for squat!

Now, technically, you have an interesting issue here. DHS lacks authority to reinstate – it has to be done by an immigration officer (i.e. ICE or CBP). Read the code section carefully. Also, said reinstatement is discretionary. If ICE/CBP opt not to apply this section, then…can they later change their mind?

The most telling indication that this section does not apply is the release of the alien on parole or bond. That is not done when reinstatement is in play, and the Court has no authority on bond issues with these folks (for obvious reasons).

Do you have a question about immigration law or deportation defense? Contact us! Initial phone consultations are always free. 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

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

From https://timewellspent.kronos.com/2016/10/31/flsa-compliance/

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

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