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