Articles & Publications

Resnick & Louis, P.C. – Attorneys at Law

Resnick & Louis, P.C. was founded in 2012 by Mitchell J. Resnick and Lena M. Louis, both of whom are highly respected attorneys in the legal and business communities, with over 40 years of collective experience. Together they have developed a team of diverse and experienced attorneys who are licensed to represent clients in various jurisdictions.

Browse articles and publications that are written by and featuring the attorneys of Resnick & Louis.

If you are interested in contacting an attorney for an interview or article, please contact Stacie O’Brien at sobrien@rlattorneys.com

 


What is Proposition 206-The Fair Wages and Healthy Families Act?

QUESTION PRESENTED What is Proposition 206-The Fair Wages and Healthy Families Act (the “Act”) generally? How does it impact non-hourly employees, specifically employers of motor carriers? BRIEF ANSWER The Act will take effect on July 1, 2017, and gives employees the right to accrue paid sick leave. Employers of truck drivers will also be subject to the act. To determine the amount non-hourly employees are to be compensated for paid sick leave, such as motor carriers, the Industrial Commission of Arizona (“ICA”) delineates their hourly rate is determined by one of four methods detailed below. DISCUSSION The Act applies to all employers. The ICA states they do not intend to apply the Act against employees who work outside of Arizona. The Act gives employees 1 hour of sick time for every 30 hours worked. Employers with less than 15 employees must at minimum permit and allow the use of 24 hours of paid sick leave per year. Employers with more than 15 employees, must at minimum permit the use of 40 hours of paid sick leave a year. An employer also has the option to provide all earned paid leave time that an employee is expected to earn at the beginning of the year. Unused paid sick leave rolls over into the next year unless the employer decides to exercise its option and pay the employee for the time that is to be rolled over. An employee can only carry a maximum of 40 hours paid leave time into the next year and remains entitled to accrue an additional 40 hours paid leave (maximum of 80 hours) if there are 15 or more employees. If there are less than 15 employees, an employee can only carry a maximum of 24 hours paid leave time into the next year and remains […]


Medical marijuana laws present unique challenges to employers

Almost all states will soon have similar laws as to medical marijuana usage, and generally no employee can be fired just for having medical authorization to use marijuana. The Americans with Disabilities Act even prevents employers from asking about it because that would presume the employer is asking about an underlying disability. While it’s still illegal under federal law to possess or use it, there have been more than 60 peer-reviewed studies with an overwhelming majority finding marijuana helpful as palliative care in debilitating diseases or for those with chronic pain. What is an employer to do? Re-write your employee handbook; be vigilant and drug test under the defense of reasonable suspicion. Current Arizona law is typical of many states’ view: unless a failure to test would cause an employer to lose a monetary or licensing-related benefit under law, an employer may not discriminate against a person in hiring, terminating, imposing a condition of employment, or otherwise penalizing a person for having medical marijuana privileges, or producing a positive test for marijuana. Safety-sensitive work in the transportation industry – or any industry – allows the employer to discipline/terminate employees with medical marijuana prescriptions if intoxicated on duty. Regardless of the industry, no employee with a medical marijuana card may use, possess, or be impaired at work. Why should you be concerned/have a policy/conduct reasonable suspicion testing? Because of exposure to the legal risk of negligent hiring or negligent retention claims brought by third persons; and because your medical card employee could challenge you for discrimination if you do not treat every employee the same. The Gig Economy Just Got Giggier On June 7, 2017, Labor Secretary Alexander Acosta announced that the U.S. Department of Labor has withdrawn two informal guidance documents on independent contractor misclassification and joint employment, which had […]


The Insurance Issue for 2017

Excess, Umbrella, and multi-Insurer Coverages. Deductibles and Self-insured Retention policies; Control over Safety; Insurance Pricing in 2017. You’ll buy insurance this year for your transportation business, and perhaps a large percentage of it will be from multiple insurers. Pricing may be an issue (see below), or your clients may require certain policy features. Insurance policies themselves are always bilateral, not multi-lateral agreements. So, when you buy into a multi-insurer program, you should be aware of the gaps and inconsistencies that may occur. Your insurance broker is assembling a program that is complex, multi-layered, and multi-insurer. So ask a lot of questions. Never will two insurers jointly issue one policy that will provide whole coverage to you. But although policies are not multi-lateral that does not mean they operate only individually. Excess and umbrella policies, which you may need to fulfill customer demands, refer to other policies by their nature, generally calling them the underlying coverage – and are contingent in some ways on the provisions of that underlying coverage. A primary policy pays the first dollar of a covered claim, perhaps subject to your deductible or self-insured retention. You buy the primary and then add other policies that are excess of the primary as you deem necessary. An excess policy means the insurer only begins coverage after the pre-determined primary limits. Excess is available for just about all primary lines and there is no requirement you buy only from one underwriting company. An umbrella policy is more of a stand-alone excess policy that offers a bit broader scope than the primary. Umbrella policies stand out over plain excess covers: like an excess policy, umbrellas provide additional amounts of cover once the primary is tapped out; but umbrellas sit more broadly, and provide cover over other types of coverage, for example, […]


Baseball Stats have statistical rigor; FMCSA’s CSA scores do not

Baseball has always had statistics. They’ve been studied to excess and its auditors have immense data directly related to every player. Not so with CSA BASICs. The FMCSA built CSA and it routinely lacks the complete data to reveal the behaviors the Agency – and insurers, and shippers – are interested in. What the Agency does instead is substitute stand-in data, or what we might call proxy data. They draw statistical correlations between a motor carrier’s type of operations and its potential for safety. These correlations discriminate. Whereas baseball stats pour in daily for more than 6 months a year; and they can feed back inconsistencies into the model, redefining it as they progress, CSA scores are static; there is no mechanism to correct errors (let’s not even bring up dataQ appeals). Conditions and outcomes change or evolve in court somewhat closer to the truth, so must the model the penalties are based on. CSA, cloaked as it is in a great deal of mystery, with only chance encounters delivering outsized results, relies heavily on a handful of “test” results, which is so very far from algorithmic modeling. But yet, CSA purports to predict outcomes – i.e., crashes. These “predictions,” unfortunately, guide the discussions of shippers, DOT inspectors, and insurers. There will always be miscalculations in CSA evaluations because the models used are just simplifications. No model can include all the world’s complexities or nuances of human behavior. Inevitably, a lot of important stuff gets left out – like communications in operations, variable ground conditions, and interactions with other parties, namely shippers and receivers. To be frank, CSA BASICs is a toy algorithmic model that abuses truckers who all operate on the slimmest of margins. The Agency makes choices about what’s important enough to include, simplifying the world of trucking […]


FLSA and Motor Carriers – California Comp still hurts – freight capacity

The Fair Labor Standards Act (FLSA) provides that employers must pay non-exempt employees at “one and one-half times the regular rate” for time worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA exempts “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” under the Motor Carrier Act (MCA). 29 U.S.C. § 213(b)(1) (“the MCA Exemption”). Mr. Williams brought this action alleging that Central Transport LLC violated the FLSA’s overtime requirements when it employed him as a “switcher” at its St. Louis terminal. He tried to make the claim into a class action suit. The question of how Williams spent his time working for Central Transport is a question of fact; the ultimate issue of whether his work activities exempted Central Transport from paying FLSA overtime is one of law. In United States v. American Trucking Ass’ns, 310 U.S. 534, 553 (1940), the Supreme Court rejected the contention of that all employees of interstate motor carriers were exempt, concluding that the jurisdiction to regulate maximum hours “is limited to those employees whose activities affect the safety of [motor carrier] operation.” Later, the rule was expanded that motor carrier drivers, mechanics, loaders, and drivers helpers who “perform duties which affect the safety of operation… are therefore subject to the authority conferred [by the MCA] to prescribe qualifications and maximum hours of service.” MC-2, 28 M.C.C. 125, 126 (1941). Mr. Williams was a “city loader” by title with Central Transport. However, he also did some minimal loading of trailers that affected the motor carrier’s safe interstate operation, including balancing loads and stacking cargo “high and tight.” The 8th Circuit Court of Appeals in a decision published July 28 2016 seems to have expanded a ruling from 1947 […]