Whether the medical record is on paper or made via a computer, the importance of an accurate record cannot be emphasized enough.  The patient’s medical record that you create may be viewed and relied upon by the patient and other physicians.  The medical record may also be closely examined by lawyers, judges and members of a jury if you are involved in a lawsuit.

From an attorney’s point of view, an incomplete or not quite accurate medical record can be explained.  In fact, often times the explanation is quite easy.  But a jury does not always believe the explanation.  Sometimes the jury will question the accuracy of other records if just one record is found to be inaccurate.  Losing credibility with a jury can have devastating consequences.

As you implement your electronic records system and work through nuisances of that system, including where you input certain information, don’t forget to double or triple or quadruple check the information you input before moving on to the next patient.  An extra few minutes now could save you countless hours in the future.

While a financing statement that is not filed under the debtor’s correct name may not be effective, the effectiveness of tax and judgment liens and other non-UCC liens are not as dependent on precision of the debtor’s name.  The Spearing Tool and Manufacturing case decided by the United States Court of Appeals for the Sixth Circuit is a perfect illustration of why this is important.  In this case, the debtor granted the lender a security interest, and the lender perfected by filing financing statements identifying the debtor as “Spearing Tool and Manufacturing Co.”  This was the precise name of the debtor listed with the Michigan Secretary of State’s office.  The debtor later fell behind in making tax payments, and the IRS filed tax liens with the Secretary of State listing the debtor as “Spearing Tool & Mfg. Company, Inc.”  This name varied from the name listed with the Michigan Secretary of State by replacing the “and” with an “&,” abbreviating the name “Manufacturing,” writing out the name “Company,” and adding “Inc.” at the end.  The name that the IRS used in filing its federal tax lien was the name used by the company in filing some of its quarterly tax returns.  The lender, in following its good due diligence practices, was periodically submitting search requests to the Michigan Secretary of State looking for any updated liens or filings using the debtor’s exact name.  However, these searches did not reveal the federal tax liens due to the search logic used by the Michigan Secretary of State’s office and the variation in the name used on federal tax liens.  Since the lender was unaware of the tax liens, it continued to loan money to the debtor.  The debtor filed bankruptcy, and the issue of lien priority between the lender’s liens and the federal tax liens was determined by the Court.  The Court held that, under federal law, the IRS tax liens were validly filed, and had the lender done searches under common name variations for the debtor which were acceptable in non-UCC lien filings, the lender would have discovered the federal tax liens.  The IRS won and the lender lost.

Although this case is limited to these specific facts and the jurisdiction in which it was decided, the case illustrates how important it is to search all variations of the debtor’s name when searching for tax and judgment liens.  Engaging in a broader search will often result in a more complete and accurate picture of the business that may be the subject of your purchase or loan.

Author: Laura A. Scott (bio)

Phone: 812.452.3557

Email: lscott@bamberger.com

Ayanna Wright was a City of Gary employee and president of the local union.  In 2008, she was advised that her job was being eliminated.  The City of Garyand the American Federation of State, County and Municipal Employees, Council 62, had a collective bargaining agreement (CBA) that allowed a city employee to “bump” into a job held by someone with less seniority if the “bumping” employee’s job was eliminated.  In 2008, Wright elected to “bump” into an administrative position.

Even though Wright was determined, by the City of Gary, to be qualified, the City of Gary would not hire her for that administrative position because a city ordinance stated that the CBA does not cover employees who have unrestricted access to confidential personnel files.  The City of Gary maintained that the administrative position that Wright was “bumping” into had unrestricted access to confidential personnel files.  Wright filed a grievance and the dispute went to arbitration as required by the CBA.

At the arbitrator’s evidentiary hearing, the City of Gary maintained that the person Wright was seeking to “bump” actually had more seniority because she was hired before Wright.  The City also argued that a second city ordinance provided the authority that the city agency was allowed to choose its own administrative assistant.  The arbitrator found that the administrative position was subject to the CBA and that Wright had more seniority, which would allow her to “bump” into the administrative position.

The Indiana Court of Appeals found the arbitrator’s decision to be a proper exercise of his powers.  The Indiana Court of Appeals was critical of the trial court, which had reversed the arbitrator’s decision.  The Indiana Court of Appeals wrote, “The trial court essentially conducted an improper de novo review and erred by concluding that Arbitrator Archer exceeded his powers merely because he did not reach the same conclusion as the trial court.”

The decision itself was not surprising even though one member of the Court of Appeals did dissent from the majority’s position.  However, the tone that the Indiana Court of Appeals took with regard to the trial court indicates that arbitrator’s decisions will not be easily set aside.

Author: Chad M. Smith (bio)

Phone: 812.452.3597

Email: csmith@bamberger.com

This case is significant in that it is the only known court decision to invalidate a UCC financing statement filing based on a name shown on the debtor’s driver’s license.  There have been many other cases where the court found that a filing done under a nickname was not sufficient when a different name was used on the driver’s license, for example, “Mike D. Larsen” instead of “Michael D. Larsen.”  However, this is the first case to determine that, if a nickname was used on a driver’s license and in a UCC filing, it was ineffective.

Fortunately, the amendments to Uniform Commercial Code Article 9 will clarify the questions surrounding a proper debtor name in a UCC filing.  The model changes which have been adopted in Indiana and many other states will clarify that the “official” name for an individual debtor on a UCC financing statement will be the debtor’s name as shown on the driver’s license or state ID.  Although the bankruptcy court in this Illinois case reached an unusual result, it is recommended that lenders go ahead and start implementing processes now that require use of the debtor’s name as shown on his or her driver’s license or state ID when filing a UCC financing statement on an individual debtor.

Author: Laura A. Scott (bio)

Phone: 812.452.3557

Email: lscott@bamberger.com

In Walczak v. Labor Works-Fort Wayne, LLC, Walczak filed a lawsuit on her behalf and all others similarly situated like her.   Labor Works provides temporary day-laborer services to businesses in the Fort Wayne area.  The businesses communicate to Labor Works that a certain number of laborers are needed on specified days for specified tasks.  Labor Works selects persons who have appeared at its facility on the day in question, having already completed certain steps to become eligible to accept an assignment for work.  There is no guarantee that work will be assigned.  Walczak sought work through Labor Works on a sporadic basis from December 2009 through March 2010.

Walczak’s lawsuit alleged violations, by Labor Works, of the Wage Payment Statute and the Wage Deduction Statute.  Labor Works defended the case because it believed that Walczak’s claim fell under the Wage Claim Statute because she was “separated from the pay-roll” at the time she filed her complaint.  The Wage Payment Statute applies to current employees and employees who voluntarily leave employment.  The Wage Claims Statute governs actions involving employees who were involuntarily separated from employment at the time the claim was filed and must first proceed with the Indiana Department of Labor.  Labor Works filed a motion for summary judgment with the trial court arguing that Walczak’s claim properly belongs under the Wage Claims Statute.  The trial court granted Labor Works’ motion for summary judgment.

In Walczak, the essential determination was which statute applies to Walczak.  The Indiana Court of Appeals, relying on guidance from the Indiana Supreme Court, ruled that the determination of whether Walczak, at the time she filed her complaint, was separated from the payroll by Labor Works within the meaning of the Wage Claims Statute is a question of fact and not a matter of statutory interpretation.  Therefore, that question should have been first submitted to the Indiana Department of Labor.  As  a result, the trial court never had subject-matter jurisdiction over Walczak’s claims until the Indiana Department of Labor had made a determination on that question.  The summary judgment granted by the trial court in favor of Labor Works was reversed and the case was remanded to the trial court with instructions that Walczak’s complaint be dismissed.

Even though a lawsuit may be filed without alleging a Wage Claim Statute violation, an employer will retain the defense that the Indiana Department of Labor has proper jurisdiction if the facts show, or at least present a question about whether, the claim pertains to the Wage Claim Statute.

Author: Chad M. Smith (bio)

Phone: 812.452.3597

Email: csmith@bamberger.com

This complimentary seminar will guide you through the preparation of effective responses in these areas, and we’ll give you time to ask specific questions that you may have encountered in your workplace.

The seminar will be held at the Bamberger Conference Center on the 10th floor in the Hulman Building. Lunch will be provided. If you’d like to attend this informative seminar, please RSVP by Wednesday, May 9, 2012 by calling 812.452.3567 or email us at rsvp@bamberger.com.

Author: Kim Jewell (bio)

Phone: 812.452.3588

Email: kjewell@bamberger.com

King quit her job with Acosta in 2007, and claimed that Acosta paid women less than men for the same work—in violation of the federal Equal Pay Act (EPA).  Acosta contended that education and experience accounted for the salary difference.   It claimed all of the male employees had college degrees, while King did not.  Acosta said it had to meet or exceed other firms’ compensation in order to hire capable workers.

The federal district court agreed with Acosta and granted summary judgment.  In doing so, the district court permitted Acosta to cite education and experience as the legitimate, non-discriminatory reasons for the pay differences.  The lower court maintained that King was then required to show that Acosta’s explanation was a “pretext for discrimination.”  But King appealed and the 7th Circuit Court of Appeals clarified that the EPA does not share the same “burden-shifting” method of proof used in cases involving sex discrimination under Title VII of the Civil Rights Act.

The 7^th Circuit held that—under the EPA—an employer claiming that factors other than sex explain the differences in salaries between men and women has the burden of proving that those factors actually account for the salary differences.  The court noted that an employee’s only burden under the EPA is to show a difference in pay for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”  An employer claiming that the difference is due to a “factor other than sex” must assert an affirmative defense and prove that defense.

In reversing the entry of summary judgment for Acosta, the 7th Circuit found that, men may start a job with higher salaries because of education or experience.  But if men and women perform equally thereafter, women should receive raises more frequently.  So the salaries should tend to equal out. Instead, Acosta’s male managers received “substantially greater increases in pay,” causing the difference in salaries between male and female managers to increase. Those numbers were not explained by education and experience at the time of hire—factors that should decrease with time.

The court agreed that differences in salary increases might be explained by different performance.  But Acosta admitted that King was one of its most successful managers.  So performance was not an issue.  Under the EPA, any pay difference based on sex violates the act.  And King established large differences.

Acosta’s additional argument was that its general manager might have set salaries “haphazardly or irrationally.”  The 7^th Circuit acknowledged that a random decision is indeed a factor other than sex.  But the court said it was difficult to see how every man could be paid more than all but one woman, and why men received greater raises, even if the general manager were “pulling numbers out of a jar.”

Contact Bamberger attorney Michael J. Cork for further information about complying with the Equal Pay Act or other employment issues.

Author: Michael Cork (bio)

Phone: 317.464.1594

Email: mcork@bamberger.com

For those engaged in farming, it is important to plan for the preservation of the farm real estate so that it may be farmed by both current generation farmers and next generation farmers.

For those not actively engaged in farming, it is nevertheless a valuable, income-producing asset that often has emotional and historical meaning as well.

The challenge in either case is to continue the “family” ownership of the farm real estate in a flexible environment.

If parents own the farm real estate, and then transfer it during life or at death to children, as joint owners, the real estate is at risk.  Any joint owner can force the sale of the real estate, as can a creditor of a joint owner or possibly a former spouse of a joint owner.  And joint ownership is just awkward from a management standpoint.

Placing title to farm real estate in an Irrevocable Trust is a possibility, and is occasionally the right choice; but there is a substantial loss of flexibility in the ownership and management of the real estate.

The better choice is often a Limited Partnership or a Limited Liability Company.  These “business entities” are similar.  Each is a vehicle that can be used to centralize the title to the farm real estate; to provide for succession of the ownership interests in the business entity; to provide for centralized management of the farm real estate; to prevent any individual owner or his or her creditors or former spouses from causing the sale of the real estate; and to assure that the real estate continues to be leased to the current and next generation farmers in the family so long as they are farming.  Both of these business entities also provide protection from unlimited liability for injury to person or damage to property that can arise from the ownership of the farm real estate.

The Limited Partnership and the LLC can be designed to fit the objectives of each individual planning situation.  These entities are also relatively income tax neutral in that the entities can be formed and dissolved without income tax consequences.  They can also be used in conjunction with trusts to accomplish even more asset protection.

If you or your family owns farm real estate, you and your family members may wish to consider forming a Limited Partnership or a Limited Liability Company to own the real estate to plan for future ownership, management, and preservation of the farm real estate.

Author: John P. Broadhead (bio)

Phone: 812.452.3577

Email: jbroadhead@bamberger.com

Author: Lindsay B. Schmitt (bio)

Phone: 812.452.3570

Email: lschmitt@bamberger.com

This complimentary seminar will guide you through the preparation of effective responses in these areas, and we’ll give you time to ask specific questions that you may have encountered in your workplace.

The seminar will be held at the Bamberger Conference Center on the 10th floor in the Hulman Building. Lunch will be provided. If you’d like to attend this informative seminar, please RSVP by Wednesday, May 9, 2012 by calling 812.452.3567 or email us at rsvp@bamberger.com.

Author: Kim Jewell (bio)

Phone: 812.452.3588

Email: kjewell@bamberger.com