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Finholt v. Cresto 143 Idaho 894

Legal Update Idaho State Controller’s Conference October 15, 2007 Post Falls, Idaho Skenyon@idcourts.net. Finholt v. Cresto 143 Idaho 894. Was car accident on way to girlfriend downtown or additional work? Traveling employee exception?

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Finholt v. Cresto 143 Idaho 894

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  1. Legal UpdateIdaho State Controller’s ConferenceOctober 15, 2007Post Falls, IdahoSkenyon@idcourts.net

  2. Finholt v. Cresto 143 Idaho 894 • Was car accident on way to girlfriend downtown or additional work? • Traveling employee exception? • Coming and going rule – In Idaho an employee is not within the scope of his employment when he is on his way to and/or traveling home after. See Ridgeway 98 Idaho 410, 411.

  3. Mother Doe v. City of Elk River May 9, 2007 ___ Idaho 144 • Storage shed next to city hall • Teenager molested girls in shed • Attractive nuisance claim against city • Elements 1. reasonable attraction to children 2. structure was unusually attractive to children 3. danger not apparent to immature minds 4. child attracted to structure by danger. • City was not liable – attorney had to personally pay attorneys fees.

  4. O’Gin v. Bingham County • July 1999 two brothers killed when hillside at landfill gave way and boys were buried. • Family brought claim against county for negligence and attractive nuisance. • Violation of a statute constitutes negligence per se. • Supreme Court found that the county had violated the IDAPA – therefore were negligent per se. • Difference between regular negligence and negligence per se – negligence per se is a standard that is based in a statutory violation whereas ordinary negligence is a violation of the common man standard.

  5. Cowles Publishing v. Kootenai County, May 4, 2007 144 Idaho __ • Email between employee and county prosecutor – are they subject to public records requests? • Over 1,000 emails sent in a one year period. • Newspaper reporter requested access to all emails. • County turned over some emails but withheld 597. • Kalani claimed that emails were not official public business and therefore not subject to PRR and if not they were subject to the personnel exclusion. • Court held they were not personnel related information such as letters of discipline or accommodation.

  6. Baird Oil v. Idaho State Tax Commission 144 Idaho ___ May 1, 2007 • Baird Oil claimed a refund of fees paid into the petroleum clean water trust fund. • Fund needed a 30 M balance – if it went over then 1cent tax waived. • Baird oil claimed that the state waited too long to announce that the fund had achieved its needed balance. • Analysis of Res Judicata – claim preclusion. • J. Eismann said look at 67-1023 for claims against the state – they must begin with the board of examiners.

  7. Cordova v. Bonneville County School District 93 • See opinion July 31st rehearing denied September 14th. • Cordova worked for District 91 was asked by friend to help with youth programs at District 93. • While students were doing a “trust fall” Cordova was injured – elbow to the neck while helping catch a student. • Cordova sued District 93 in tort – question whether District was a statutory employer.

  8. True and Correct stories from the Idaho Supreme Court Was it a hemorrhage or a hemorrhoid

  9. Superior Grade v. Idaho Department of Commerce144 Idaho 386 • Krick Equipment Company - SUTA dumping case. • Idaho Code 72-1351 • Company fined 12,866.00

  10. City of Boise v. David Frazier143 Idaho 1 • City of Boise wanted to use Judicial confirmation to issue debt to expand airport parking garage • What is an ordinary and necessary debt – thus can be issued w/out a vote • Supreme Court – no it was not an ordinary and necessary debt. • Parking garage not necessary because there were other alternatives such as bussing to other lots.

  11. Gunter v. Magic Valley Regional Medical Center 143 Idaho 63 • Unemployment claim by nurse who was terminated Idaho Code 72-1366(5). • Employer must show by a perponderance of the evidence that employee’s conduct fell below standard of behavior expected by employer AND • Empoyer’s expectations were objectively reasonable. • July 24th incident – you make the call.

  12. Gibson v. Ada County 142 Idaho 746 • Gibson transferred from records dept. to Jail Technician II. Ada county failed to turn off payroll deduction voucher and gibson was paid twice. • This continued from November 1998 to June 1999. Total overpayment of $8,500. • She was terminated for knowingly accepting double salary payments and • Failing to correct such adjustments. • This was the fourth appeal to the Idaho Supreme Court. • Workers compensation claim currently pending.

  13. State v. Pruett143 Idaho 151 • Hagerman Police Department office charged with misuse of public funds after charging $90.84 for controlled hunt permits. • They used the city credit card to purchase the permits. • Dispute over whether they meant to use personal credit card or used city credit card. • When charges showed up on p-card statement mayor confronted the two who wrote a personal check.

  14. Pruett continued • Idaho Code 18-5701 • Because the two officers were not persons “charged with the receipt, safe keeping, transfer or disbursement of public moneys” they didn’t fall under 18-5701.

  15. Idaho Child Labor laws • TITLE 44 LABOR CHAPTER 13 CHILD LABOR LAW 44-1301. RESTRICTIONS ON EMPLOYMENT OF CHILDREN UNDER FOURTEEN. No child under fourteen (14) years of age shall be employed, permitted or suffered to work in or in connection with any mine, factory, workshop, mercantile establishment, store, telegraph or telephone office, laundry, restaurant, hotel, apartment house, or in the distribution or transmission of merchandise or messages. It shall be unlawful for any person, firm or corporation to employ any child under fourteen (14) years of age in any business or service whatever during the hours in which the public schools of the district in which the child resides are in session, or before the hour of six o'clock in the morning, or after the hour of nine o'clock in the evening: provided, that any child over the age of twelve (12) years may be employed at any of the occupations mentioned in this chapter during the regular vacations of two (2) weeks or more of the public schools of the district in which such child resides.

  16. Can you do the math? • 44-1302. CHILDREN UNDER SIXTEEN -- EDUCATIONAL REQUIREMENTS. No minor who is under sixteen (16) years of age shall be employed or permitted to work at any gainful occupation during the hours that the public schools of the school district in which he resides are in session, unless he can read at sight and write legibly simple sentences in the English language, and has received instructions in spelling, English grammar and geography and is familiar with the fundamental operations of arithmetic up to and including fractions, or has similar attainments in another language.

  17. Cafferty v. Idaho Transportation Department 144 Idaho 324 • Timothy Hedges was released from prison on April 14, 2004 after serving time for a DUI conviction. • August 2, 2004 charged with 9th DUI • On August 18, 2004 he crossed the center line of Highway 21 and Killed Patrick Cafferty resulting in his 10th DUI conviction. • ITD issued him a license – suspended the license immediately so 5 year suspension ran while he was in prison. • Was ITD grossly negligent for issuing Cafferty a license? • Did ITD have immunity?

  18. Nation v.Department of Correction144 Idaho 177 • May 3, 2002 inmate David Persons threw an unidentified bodily fluid and hit three corrections officers in the faces. • Officers filed workers comp claim forms and had to fill in ss numbers and dates of birth. • The forms were sent to the Ada County Prosecutors office • Persons was given these unredacted forms by his public defender who received the unredacted forms from the Ada County Prosecutor’s office. • Justice Schroeder Dissent.

  19. Curlee v. Kootenai County Fire and Rescue May 24, 2007 WL 1501383 • Public Employee filed suit against county fire and rescue claiming she had been wrongly terminated. • Idaho Whistleblower act • Idaho Code 6-2101(1)(a) • What is participation in an investigation?

  20. Supreme Court humor part II • Moral of the story – Never tell a lie in the Idaho Supreme Court Courtroom!!!!!

  21. Paolini v. Albertsons143 Idaho 547 • Idaho Wage Payment Act • Can Stock options be considered wages? • If employee is fired for exercising his right to the receipt of wages, has the employer violated the public policy exemption to at-will employment?

  22. American Falls Reservoir v. Department of Water Resources143 Idaho 862 • Surface water users brought director of Department of Water Resources • Conjunctive management rules. • Rules were not facially unconstitutional

  23. Withers v. Bogus Basin Recreational Ass’n 144 Idaho 78 • Skier tried to ski over boundary rope. • Ski Area Liability Act IC 6-1101 • Eliminate, Alter control or lessen the risks inherent with the sport of skiing.

  24. Pocatello Education Assn v.Heideman October 5, 2007 • Idaho Voluntary Contributions Act prohibited deductions to unions. • Idaho Code 44-2004(2) • Political Speech? • 9th Circuit – held law was unconstitutional

  25. IRS 20 point factors: 1. Level of instruction 2. Amount of training 3. Degree if integration 4. Extent of personal services. 5. Control of Assistants 6. Continuing relationship 7. Flexibility of schedule 8. Demands for full time work 9. Need for on-site services 10. Sequence of work 11. Requirements for reports 12.Hourly weekly or monthly pay 13. Payment of business or travel expenses Providing tools and materials Independent Contractors

  26. 15. Investment in facilities 16.Realization of profit or loss 17. Work for multiple companies 18 Availability to general public Control over discharge. Right to terminate. 20 factor test continued

  27. New IRS Test – Independent Contractors Behavior Control • Instructions - an employee is generally told: • when, where, and how to work • what tools or equipment to use • what workers to hire or to assist with the work • where to purchase supplies and services • what work must be performed by a specified individual • what order or sequence to follow • Training – an employee may be trained to perform services in a particular manner.

  28. New IRS Test – Independent Contractors • Financial Controls • Financial Control – Facts that show whether the business has a right to control the business aspects of the worker’s job include: • The extent to which the worker has unreimbursed expenses • The extent of the worker’s investment • The extent to which the worker makes services available to the relevant market • How the business pays the worker • The extent to which the worker can realize a profit or loss

  29. Independent Contractor Cont.. Type of Relationship Type of Relationship – Facts that show the type of relationship include: Written contracts describing the relationship the parties intended to create Whether the worker is provided with employee-type benefits The permanency of the relationship How integral the services are to the principal activity

  30. When in doubt – SS - 8

  31. Excell Construction v. IDOL141 Idaho 688 June 21, 2005 • Idaho Dept of labor – unpaid unemployment taxes • Drywall installers • Idaho Rule : free from control and engaged in an independent business • Excell employee fired • IDOL didn’t provide proper analysis on independent business

  32. Unemployment Tax Withholding • US v. Tampas 493 F.3d July 26, 2007 • Living Care Alternatives v. US WL 2566032, September 5, 2007

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