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Despite the comprehensive laws and regulations that are supposed to protect residents of our nursing homes, too many times things go wrong. There is a financial incentive for nursing homes and the companies that run them to cut corners by hiring too few staff members and underpaying the staff members who do work there. For these and other reasons, the quality of care received by residents of nursing homes falls short of the standard. Although the injuries suffered by the victims of such abuses can take many forms, dehydration, pressure sores, infections, choking, elopement, and falls are some of the more preventable and serious injuries that we see. In particularly tragic cases, nursing home residents may not survive their injuries. To be clear, each and every nursing home has an obligation to provide quality care to every resident in the facility. It is not the fault of the resident or the resident's family when the nursing home falls short of these standards. However, there are some things that we can do to help make sure that nursing homes live up to their obligations. The federal government has published some useful information that may assist you in selecting or evaluating a nursing home. Those resources can be found here: http://www.medicare.gov/nursing/overview.asp. The most important part may be to trust your instincts and ask questions. I realize that depending on each individual circumstance, frequently visiting your relative in the nursing home may be difficult. However, the personal involvement of the family at the home can be very important. If you or a loved one has been injured at a nursing home, we encourage you to learn more about the experienced attorneys at Bordas & Bordas and to contact us to find out what you can do to make nursing homes safer places for some of the most vulnerable members of our community. This article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between Bordas & Bordas and the user or browser.

A gigantic gas explosion in Adair County, Kentucky occurred this past February 13 th. The explosion was so massive that a crater 60 feet deep was left behind. Two homes were totally destroyed and two people were hospitalized as a result. The explosion has brought attention to a significant safety problem affecting all of America, that is particularly serious in the Ohio Valley and its communities in Ohio, West Virginia and Pennsylvania. The public is only now learning that the federal regulating agency for gas pipelines only has approximately 100 inspectors to handle 300,000 miles of natural gas pipelines in the United States. The government resources being devoted to the issue are woefully inadequate to the size of the problem, which, as this incident illustrates, can result in homes simply exploding with little or no warning. Organizations like the Nonprofit Pipeline Safety Trust advocate stronger oversight of the companies and more specific guidelines about how often our compressed explosive gas lines have to be examined. It aptly compared the situation to a road system which instead of having a speed limit with a definite number on it just has a smiley face that says 'drive safe.' Given the risks of devastating injuries that can occur in these types of explosions, the inadequate safety regulations we currently have are not getting the companies to do the right thing. Accountability through greater enforcement, legal action and jury verdicts will be needed to wake these companies up to the scale of the problem. Nothing less will do if we are going to influence large corporations like Chevron, Shell, Exxon, Chesapeake, and their like, to put the focus on the safety of local residents and workers in the gas drilling and distribution industries.

The massive, deadly gas explosion in New York City continues a trend that becomes more disturbing every day. Aging infrastructure and a persistent failure of gas utilities to inspect, evalutate and maintain their lines are causing lethal explosions across the country. Grieving residents of East Harlem are now just another community left devastated by neglect of the critical safety rules that would allow gas to be a safe, cheap and efficient rule, if companies could only be influenced to follow them. Three people are now confirmed dead and nine more are still missing. This photo gives only a glimpse of the scale of the catastrophe. A steady drumbeat of disasters has marked time, from the enormous catastrophe in San Bruno four years ago, to the recent disasters right here in our area, including the Tyler County explosion, the Sissonville explosion and fire and this year's Greene County explosion and fire. These disasters have all proven to be preventable and caused by neglect of safety rules and industry best practices. Update: Residents had been reporting gas smells for some time, but nothing was apparently done. " Like several other neighbors, Rivera said they started smelling gas Tuesday night. "The smell of gas was there since yesterday night," he said." Explosions like the NYC blast often revolve around the simple failure of gas utilities to pay attention to their lines after they are installed. In some cases, decades pass without any of the needed inspections and maintenance being done. This can occur even as regulated monopoly utilities seek rate increases from the public based on the need to do this work -- which is then not done. More about gas explosions, their causes and the disturbingly high rates at which they are occurring can be found here. This specialized blog really gives you an idea of what a serious problem this is.

We interact with them on an almost daily basis. They can make or break our dining out experience. Often times, they will recognize you as a regular customer and know what you want before taking your order. At the end of your meal, you leave a "tip" for great service. Have you ever wondered what happens to these tips, or realized that your tip may be your waitress's primary form of compensation for a job well done? More often than not, the waiters and waitresses in our favorite restaurants must rely on the tips left by their customers because their paid wage may be as low as $2.13 per hour. Under the Federal Fair Labor Standards Act ["FLSA"}, 29 U.S.C. 201, et seq., an employer may take a "tip credit" and pay its waiters and waitresses a mere $2.13 per hour in direct wages, unless applicable state law requires a higher amount. As exemplified by a recent Department of Labor investigation and action against Philadelphia sports bar and restaurant chain Chickie's & Pete's, restaurants often abuse the FLSA's "tipped employee" provisions and ignore other statutory provisions which require additional wages be paid to tipped employees. Chickie's and Pete's recently agreed to pay over $6.8 Million to resolve the Department of Labor enforcement action and numerous federal civil actions filed by current and former employees. Allegations of misconduct against the popular chain include paying its servers a flat $15 per shift wage rather than an hourly rate and failing to pay overtime when servers worked more than 40 hours in a workweek. The $15 per shift flat rate often fell far below the $2.13 per hour minimum wage required by the federal government. Appallingly, Chickie's and Pete's also required their servers to contribute between 2 and 4 percent of the server's daily sales to a "tip pool" which was paid to the manager at the end of shift in cash. If a server did not have enough cash to satisfy the "tip pool" contribution because the server's tips were from credit card transactions, the server was required to make ATM withdraws or borrow cash from co-workers. Rather than distributing the "tip pool" funds among employees entitled under applicable laws to share in the tips, Chickie's and Pete's allegedly retained 60% of the funds in what has come to be known as "Pete's tax". While the abuses uncovered at Chickie's and Pete's are egregious, they are not isolated. In recent years and aided by civil enforcement actions, the U.S. Department of Labor's Wage and Hour division has stepped up efforts to enforce FLSA requirements in the restaurant industry. The FLSA contains specific provisions governing "tipped employees", i.e. employees who customarily and regularly receive more than $30 per month in tips. In order to legally claim a $5.12 "tip credit" and pay an hour wage of only $2.13 per hour, an employer must specifically inform the tipped employee: (1) that the employer is invoking the $5.12 tip credit; (2) that the employer may not claim a credit which exceeds the amount of tips actually received; and (3) that all tips are to be retained by the employee except for contributions to valid tip pooling arrangements. A tip pool may be instituted to distribute tips amongst employees who customarily and regularly receive tips, but may not include such employees as dishwashers, cooks and management personnel. Under the FLSA, an employer invoking the tip credit must be able to demonstrate that a tipped employee receives at least a minimum hourly wage exceeding $7.25 when tips are considered in conjunction with the $2.13 hourly wage or make up the difference. While an employer is permitted to make certain deductions from tipped employees' wages, those deductions are limited. An employer is permitted to deduct credit card fees from tips where the tip is placed on a credit card, but only an amount proportionate to the tip itself. For example, if a $10 tip is given on a $50 bill and the credit card company charges a 3% fee, the employer may only deduct $0.30 from the tip given to the server, not the $1.80 applicable to the entire credit card transaction. Under no circumstances, however, may an employer utilize deductions which result in the tipped employee receiving less than the $7.25 per house federal minimum wage, regardless of whether the deductions are for credit card fees, breakage or walk-out reimbursements. Overtime is also required to be paid for all hours worked in excess of 40 hours per work week. Overtime is calculated at the full federal minimum wage and not the lower "tip credit" wage. Waiters and waitresses at our favorite restaurants are entitled to be fairly compensated for the hard work that they do day in and day out. While Chickie's and Pete's is the latest high profile restaurant chain to find itself the subject of legal actions arising from its treatment of tipped employees, it is not the first and it will likely not be the last. Two years ago, celebrity chef Mario Batali and his business partner settled claims arising from their practices with respect to tipped employees at their eight New York restaurants for $5.25 Million. While larger, high profile restaurants may attract the most publicity for their illegal wage and hour practices involving their tipped employees, the law applies to everyone and relief is available where our restaurant workers are not receiving the compensation they deserve or are having their tips improperly taken from them.

The massive, deadly gas explosion in New York City continues a trend that becomes more disturbing every day. Aging infrastructure and a persistent failure of gas utilities to inspect, evalutate and maintain their lines are causing lethal explosions across the country. Grieving residents of East Harlem are now just another community left devastated by neglect of the critical safety rules that would allow gas to be a safe, cheap and efficient rule, if companies could only be influenced to follow them. Three people are now confirmed dead and nine more are still missing. This photo gives only a glimpse of the scale of the catastrophe. A steady drumbeat of disasters has marked time, from the enormous catastrophe in San Bruno four years ago, to the recent disasters right here in our area, including the Tyler County explosion, the Sissonville explosion and fire and this year's Greene County explosion and fire. These disasters have all proven to be preventable and caused by neglect of safety rules and industry best practices. Explosions like the NYC blast often revolve around the simple failure of gas utilities to pay attention to their lines after they are installed. In some cases, decades pass without any of the needed inspections and maintenance being done. This can occur even as regulated monopoly utilties seek rate increases from the public based on the need to do this work -- which is then not done. More about gas explosions, their causes and the disturbingly high rates at which they are occurring can be found here. This specialized blog really gives you an idea of what a serious problem this is.

The sun will come out tomorrow. Remember Annie? I watched the motion picture countless times as a child. Whether or not you like the show, the reality is still true. Whatever your circumstances are today, they are most likely to change tomorrow. Things in my life the past year have not turned out exactly the way I would have chosen them to have turned out. For various reasons, the past twelve months have been some of the most challenging yet transformative months of my life. There have been times when I have been extraordinarily happy. I have also experienced times when I wasn't so happy and it was difficult to understand why the situation was turning out the way it was. Despite these difficulties, I have changed into a different person than I would have been if I had not been allowed to live through some of these circumstances. I'm sure you can attest to the same things. My intention isn't to bore you with my life, but to tell you that no matter the season you're going through, the world keeps turning. The sun really will come out tomorrow. Even if it's a cloudy day, you can rest assured that the sun is still there. We see it here every day at Bordas & Bordas. Many of our clients are experiencing days when they only see the clouds and not the sun. However, through our efforts to get justice for them, they can see a little bit of sun shining through those clouds. Life does go on and the sun will rise. (In fact, it's been shining the whole time I've been writing this blog.)

On February 1st of this year, Kyle Kirkpatrick, Terry Lee Richard and Michael Dale Garrett died when a cell tower collapsed in Harrison County, WV. Mr. Kirkpatrick and Mr. Richard, aged 32 and 27, respectively, were working on a communications tower in order to add additional tenant equipment to it when it suddenly collapsed. The two workers died at the scene. Mr. Garrett, a volunteer fireman who was responding to the scene of the accident, was killed by debris when a second tower collapsed after having been weakened by the destruction of the first tower. He was only 28 years old. All three of these men were struck down in the prime of their lives. None of them deserved to die. Accidents like the one that took their lives are becoming part of the way that communications companies do business, and those business practices should make you look twice at the real cost of your monthly cell phone bill. A 2012 investigation conducted by FRONTLINE and ProPublica discovered that between the years 2003 and 2011, 93 workers were killed on communications towers, a rate of death ten times the national average for construction workers. 50 of the workers killed were at cell cites. According to the Occupational Safety and Health Administration , there have been fourteen injuries or fatalities on communications towers nationwide since September 2013, more incidents than the past two years combined. Here's something else that's rising at the same time: the number of U.S. smartphone subscribers. PBS reports that the number of U.S. smartphone subscribers has shot up by a factor of 44, from 3.5 million in 2005 to 156 million in 2013. That number is only expected to rise. In an interview with the West Virginia Gazette, Randy Gray, a former OSHA inspector, attributes the sharp increase in accidents to rising demand from cell phone companies racing to replace older 3G cell networks with 4G or 4GLTE data networks. As he explains, "Let's say AT&T or Verizon takes out a contract and they put a deadline for completion, then the pressure is on at that point. Because if they don't meet that contract, then they start getting penalties for not completing it on time. That's when things exist like taking shortcuts - So what if we don't put those safety harnesses on today because those harnesses are going to slow us down." When unsafe working practices are not only condoned, but incentivized, dangerous working conditions for workers result. However, no increase in cell call quality can justify the reckless loss of human life. Although pressure from major cell companies is the driving force behind these unsafe labor practices, because of a complex set of subcontracting arrangements, the major phone carriers avoid scrutiny or blame when accidents occur. This can be seen in the web of companies involved in last month's tragedy in West Virginia: S&S Communications was servicing a tower owned by SBA Communications, presumably at the behest of some larger telecommunications company. Although the investigation hasn't been concluded yet, if this accident is anything like past accidents suffered by S&S workers, it probably was a result of too much haste and too little concern for worker safety. February's tragedy was not S&S's first fatal accident. In 2009, the company was sanctioned after an employee fell to his death from a 330-foot communications tower in Oregon County, Missouri.  The company was cited for the employee's failure to use a safety harness or a backup safety tether at the time of his death. Although OSHA is investigating both SBA Communications and S&S Communications for the deaths of Mr. Kirkpatrick, Mr. Richard and Mr. Garrett, no information has been released regarding what major carrier had originally requested the work be done. That's not surprising: OSHA has never issued a violation to a large cellphone carrier. In an open letter to communication tower industry employers published a few weeks ago, David Michaels, the Assistant Secretary for OSHA, stated that "Tower worker deaths cannot be the price we pay for increased wireless communications... Every single one of these tragedies was preventable." As he concluded, "It is imperative that the cell tower industry take steps immediately to address this pressing issue: no worker should risk death for a paycheck." At Bordas & Bordas, we agree.

As most of you who are reading this know, I have been at Bordas & Bordas for almost 27 years. I wrote about a lot of the technological changes that have occurred since 1987 and I have to say, I am proud of myself, the dinosaur, for keeping up! However, I have a few stories that actually have nothing to do with law, but are funny, some more in retrospect than they were at the time. One day, when I had been here about a year, I came to work and Jim Bordas met me at the door. He told me I had to go downtown and bail our maintenance man out of jail. I had never even been in a police station, let alone bail someone out of jail. I was running around frantically trying to find out where I needed to go and how much money I needed and what he had been charged with, etc., etc. Jim was no help - he didn't know how to go about it, but just that I needed to go do it. As I was walking out the door, mumbling to myself, Jim said "APRIL FOOL!" After my heart settled down to a regular rhythm, we both got a good laugh out of it. Linda Bordas' brother came to visit one time and brought his pet pig with him. I don't remember the pig's name, but at that time we had Ivy and Daisy in the office, the Bordas' Springer Spaniels. So I got a Snausage treat for the pig. Unfortunately, he had not had lessons in manners like Daisy and Ivy did and he just grabbed the treat, biting my finger in the process. I had to go the doctor and get a tetanus shot. Can you imagine having the doctor ask how I hurt my finger and hearing "I got bit by a pig?" Well read on, it gets better! Some time later, I came to work the morning of our staff Christmas Party at Oglebay. It was a snowy morning and I came in the side door, dressed in my Christmas best, with expensive color-coordinated hose to match my outfit, slipped on the door jamb and fell with a tremendous bang. I hit so hard, the building shook. I cracked my head on the floor (no comments about how that shouldn't have hurt my head) and somehow cut my leg and tore my beautiful hose. Off to Doctor's Urgent Care this time. The doctor came in, checked my head, looked at my leg, cleaned up the cut and then asked me if I had had tetanus shot and when. I looked at Sandra, the secretary who had taken me to the doctor and said "I think it was when the pig bit me." He looked alarmed since I had also hit my head. Sandra, thank goodness, told him I was all right, I really did get bit by a pig at work. I told him I was upset about my hose being torn so he put a Christmas bandage on my hose. Another time (and you are going to wonder how I've survived all this time), one of the staff was playing with the dogs. The rug had moved until it was halfway up the door. I came up the back steps this time and opened the door, took a step in and down I went. I had no idea what had happened. One minute I was walking in the door, the next minute I was on the floor. After taking stock of all my body parts, I decided I was not hurt, but that I should take some Motrin to ward off pain. I asked Jeanne Dedo to please make me some instant oatmeal so I could have something on my stomach when I took the Motrin. Jeanne was terribly upset about my fall and went to get me the oatmeal. She came back with the oatmeal in a cup, stirring it like crazy. She stirred and stirred and stirred. Finally, I said, "Jeanne I think it is stirred enough." We still get a laugh out of that. Now the most embarrassing story of all! The office where I worked had a wooden shelf. One day I was leaning against it and got a splinter. You can take a guess where. Mary Jo Graebe worked with us at that time and she and several other employees had gone to lunch at TJ's. I called the restaurant and asked to speak with Mary Jo. I told her what had happened and asked if she could stop and get some tweezers and alcohol so when she got back, she could remove the splinter. It was pretty imbedded! We all got a laugh out of that too. And no, I didn't keep the splinter as a souvenir. Just remember, this is all over a long period of time. I am half-way afraid to say this, but I have been office-accident free for quite a while! I think if most of us who work in any job in any company for many years would look back, we would find a lot of things to remember and laugh about. Frequently, we tend to focus on the not so funny things, the negative things, in our lives and in our jobs. But if we really stop to think, there are good, funny, and sometimes touching things to remember too.

Read the Report here: http://www.ntsb.gov/doclib/reports/2014/PAR1401.pdf

Have you noticed that this week was full of important news? Do you want to hear some clear and interesting discussion of the headlines? Make sure you catch this week's episode of the Bordas & Bordas Legal Review to see Jamie Bordas and Chris Regan discuss Michael Sam's NFL draft, recent judicial ruling about gay marriage, the US Supreme Court's decisions on President Obama's ability to make recess appointments, political turmoil in the Ukraine and the West Virginia False Claims Bill! This episode is jam-packed with important information for you, and shouldn't be missed! Click here to view the program on vimeo, or watch the embedded version if your browser supports it. Click this link to see the WLUTV schedule so you can view a live-stream of WLUTV and check this page for a schedule of when the program airs.

This is a rather silly pet peeve but when I drive to work every morning, I pass one of those barns that are there to collect "goods" for the Goodwill store. Invariably, there are pieces of upholstered furniture there or mattresses or some other things that are beyond use. It's my belief that people have left these items there because they don't want to have to pay to take them to the landfill or don't want to pay the extra amount their refuse collector would charge to haul these unusable things away. I have also driven by this station when people have dropped off upholstered items and it is either pouring down rain or snowing. Sometimes there are also appliances sitting outside the station when it is pouring down rain! According to the Goodwill website "Goodwill was founded in 1902 in Boston by Rev. Edgar J. Helms, a Methodist minister and early social innovator. Rev. Helms collected used household goods and clothing in wealthier areas of the city, then trained and hired those who were poor to mend and repair the used goods. The goods were then resold or were given to the people who repaired them. The system worked, and the Goodwill philosophy of 'a hand up, not a hand out' was born." Also included on the Goodwill website are guidelines for the acceptance of donations. The first Don't listed on the website is: Leave items unattended outside a collection center. Invariably the items I mentioned above are sitting at the station at 6:30 a.m. The hours for dropping off donations appears on a sign at the station and does not include hours after dark and before dusk. The second Don't listed is: Donate broken or soiled items. Some of the furniture and particularly mattresses I have seen are beyond soiled. The last item listed under Don't is: Give items that have been recalled, banned, or do not meet current safety standards. I must admit, I never really thought about this but it makes sense that recalled items shouldn't be used by anyone given the fact that there is some danger associated with any recalled item. There is also a portion of the Goodwill website that allows you to calculate the impact of your donation: http://www.goodwill.org/get-involved/donate/donation-acceptance-guidelines/. I calculated the impact of 5 pairs of shoes and found that the donation of those shoes allowed a jobless person 27 minutes of a job search class; 2 lamps and a chair will give a person 49 minutes of a job search class; and a working computer allows for 5.7 hours of a job search class. What's not included in that calculator is how much time is taken away from an individual's job search class when Goodwill has to pay to have items hauled away that are useless. Goodwill is not a place to dump unusable items when people don't know what else to do with these items. The cost of disposing of these items and the time it takes volunteers to handle these large items is money lost for the cause. You can feel good about yourself when you donate things that less fortunate people out there can make great use of but I don't know how anyone can feel good about themselves when they use the Goodwill Donation Station as a garbage dump. Let's obey the rules for the Goodwill Donation Stations and really GIVE to this great cause. If you have any questions about how to get involved, the main web address for Goodwill is: www.goodwill.org. If you prefer to visit in person, you can find Wheeling's local Goodwill store at 2200 Main Street, #1, and the St. Clairsville location at 50613 Valley Plaza Drive.

Bordas & Bordas partner Chris Regan was recently published in the West Virginia Record's "Their View" column refuting an editorial published by The Record. Read on for his views about why all citizens-weak and strong alike-should enjoy the same protection of the law. Using a clearly legitimate claim as a pretext to bash basic liability rules is not the best tribute February 16th, 2014 By Christopher Regan The West Virginia Record's recent "Our View" column entitled " Using a spouse's death as a pretext for a lawsuit is not the best tribute " gives us another  opportunity to have a frank exchange of ideas. By way of background, a Target employee pushing a string of shopping carts knocked over an elderly man walking in the lobby of the store, causing him to fall, break his hip and die as a result. The Record says " believe that Target should not be blamed for a death that probably would not have occurred if Zink had been young and healthy." I appreciate the forthrightness and directness of the Record's View and the opportunity to say that I believe something different. I believe that the weak and the old enjoy the same rights as the young and the healthy. I believe that no matter why a person is weak -- whether they be a small child, a disabled person or a senior citizen -- they still enjoy the same rights I have as a healthy person in his prime. I believe that when you carelessly hurt or even kill someone, it's a poor excuse to say that the person you hurt was sickly, or some kind of weakling. As has been observed in the past -- "this is an old story, as old as our history." Some of us, like the Record, apparently believe in a kind of social Darwinism. In other words, "the wagon train will not make it to the frontier unless some of the old, some of the weak and some of the sick get left behind by the side of the trail." Well some of us believe in something different. I believe that Mr. Zink and every other American who gets a little sick or a little old deserves to ride along with the rest of us Americans as far as their life will take them, and not to be run down while taking a simple shopping trip as though their life isn't worth living because they aren't quite as tough as the Record's ideal man. The basic principle in law that when you hurt someone, you take them as you find them dates to the 1800s. The oldest West Virginia case one could find in five minutes is Perkins v. Monongahela Valley Traction Co., 81 W. Va. 781, 95 S.E. 797 (1918), and our high Court explained it this way: One suffering an injury from the unlawful act or negligence of another is entitled to recover all of the damages resulting from such negligence, even though, because of his enfeebled condition, the injury to him is much more severe than would have been sustained by one in good health. The damages in such case are not special in the sense that the injured party in his pleading must aver his weakened physical condition, and the more serious effect of the accident upon him because thereof. 1918. Not exactly a creature of modern trial lawyers, the Perkins case. This wise rule protects not only the old, but pregnant women, children, the blind, or anyone else who might be more susceptible to injury. Simply enough, the weakness of the victim is no excuse for the wrongdoer who hurts him. The Record has a lot of ambitious views about the law, but since it's been published, this is the oldest and most basic rule I've ever seen it hold up to ridicule. What's next? Mr. Zink is dead, and he shouldn't be. The people driving vehicles, trucks, and pushing heavy chains of carts inside the store should look out for people so they don't run them over. Maybe the Record thinks that's too much to ask. The law doesn't. Full Disclosure: The Zink family is represented by colleagues of Mr. Regan at Bordas & Bordas, PLLC.