Iowa Law Blog : Iowa Lawyer & Attorney : Sullivan & Ward Law Firm : Iowa Law Blog

A recent 8th Circuit decision demonstrates the importance of responding investigating and responding to claims of harassment and discrimination.  In Crawford v. BNSF Railway Co., the plaintiffs alleged that their supervisor sexually and racially harassed them on a frequent basis.  The court granted judgment in favor of the employer because the employer was able to show that it acted reasonably to prevent and correct any sexually harassing behavior and the employees failed to take advantage of the preventive and corrective opportunities provided by the employer.

The employer not only distributed its anti-harassment policies but also followed the policies.  The company had counseled the alleged harasser previously about workplace behavior and required him to attend a seminar.  The company had a hotline employees could use to make complaints.  The company investigated each and every complaint it received through the hotline.  Upon notice of the plaintiffs' complaints, the company placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks.  The court found these facts, coupled with the plaintiffs' failure to take advantage of the complaint process or hotline, granted judgment in favor of the employer.

As an employer, you cannot prevent an employee from asserting a claim, but you can decrease your potential liability by following a few steps:

1.      Adopt and distribute anti-harassment/discrimination policies.  If you don't have any policies that prohibit harassment and discrimination adopt them now.  Make sure your employees know that you have the policies and give them a copy of the policy.

2.      Educate your employees.  Ensuring that your employees understand the policy means more than handing it to them on the first day of work.  Hold periodic training with your employees that depicts illegal discrimination or harassment and educate them on the appropriate ways to report potential discrimination or harassment.

3.      Investigate all complaints.  When an employee complains of potential discrimination or harassment investigate the complaint.  Do not dismiss a complaint because it doesn't seem valid on its face.  Interview potential witnesses, talk to managers, make a written report.  Obviously, the seriousness of the complaint may warrant a more detailed investigation, but all complaints should be afforded some level of investigation.

4.      Take action.  Taking action doesn't always mean discipline or termination.  You may discover that certain employees need additional training or counseling.  Sometimes a complaint cannot be substantiated.  Even in those situations, take action by following-up with the complaining employee and making a written record of your investigation.

Having a proven track record of viewing complaints as serious demonstrates to the court that your company is committed to preventing and correcting discrimination and harassment in the workplace.

• Email This
• Print
• Comments
• Trackbacks

Today the EPA issued new standards limiting mercury, acid gases, and other toxic pollutants from power plants.  A fact sheet is available here.  Essentially, the standards seek to eliminate 90% of mercury and air toxics from power plant emissions by year 2016.  I will provide an update setting forth how the rule will be implemented.

• Email This
• Print
• Comments
• Trackbacks

A ruling issued today by the Iowa Court of Appeals brings to focus the necessity of clear and thorough language.  If not, your attorneys will thank you for the additional fees that you bring to them.  After all, attorneys need to eat, too.

As husband and wife, Paul and Minda had a will which provided for each other for their lives, then Minda's will provided that if she and Paul died at the same time or after her, her estate would pass to Paul's daughter Gail (Minda's step-daughter). Everything looks fine at first glance. But what if Paul predeceases Minda? What would happen then?  Minda's heirs (her brothers here) claim that the gift to Paul/Gail lapses (fails) and thus passed intestate (without a will) to them.

The appellate court agreed with the trial court that the will demonstrated a clear intent to provide for Gail after Paul's passing.  In addition, a court will typically rule in a way to avoid having property pass intestate, if possible.  The perceived demonstration of intent plus avoidance of intestate permitted Gail to receive her step-mother's estate.

It certainly would have been easier if the author of the will had put in a couple of additional words (for example, "if he predeceases me") to avoid having to go through a trial and an appeal.  So when you read our wills and think "man, these lawyers are wordy", there is a reason we are wordy.

• Email This
• Print
• Comments
• Trackbacks

Iowa Law Blog recently featured a post regarding the Iowa fence law found at Iowa Code Chapter 359A.  That post discussed that although the fence law was historically enacted for agricultural purposes, the Iowa Supreme Court has ruled that its applicability extends to "serve the broader public good by mediating boundary, fence and trespass disputes."  Gravert v. Nebergall, 539 N.W.2d 184, 188 (Iowa 1995).  The fence law could be used for urban purposes as well.

The fence law directs that the township trustees of the subject area will serve as "fence viewers," a group that decides the outcome of a fence dispute between two neighbors.  However, as unincorporated land is annexed by municipalities, that land is no longer part of the township, but instead part of the municipality.  Thus, the township trustees no longer have jurisdiction over fence disputes. 

Logically, under this scenario it would seem that the city council would become the "fence viewers" who would resolve the dispute between the neighbors.  However, city councils traditionally serve a legislative function, and not a judicial one.  Accordingly, it would seem that the Iowa District or small claims court would be the appropriate venue for these disputes.

Such result does not mesh with Iowa Code 359A or the Gravert decision of the Iowa Supreme Court.  The Iowa legislature should review 359A to ensure that it still serves it purpose, and that there is a clear mechism for citizens to utilize it.

• Email This
• Print
• Comments
• Trackbacks

This past summer, supermodel Linda Evangelista requested $46,000/month in child support from Francois Henri Pinault, CEO of the Paris-based conglomerate that owns Gucci, Yves St. Laurent and Bottega Veneta.  He is the father of her four year old son and has allegedly not paid any money in child support since the child's birth.  Ms. Evangelista's request raises an interesting question - In Iowa, how is child support calculated when the parents' combined net monthly income is unscheduled or in other words in excess of $20,000?

In Iowa, the child support guidelines are based on the parents' combined income and the number of children involved.  The child support guidelines are scheduled for a combined net monthly income up to $20,000.  For a net monthly income in excess of $20,000 the guidelines provide that the appropriate figure is deemed to be within the sound discretion of the court or the agency fixing child support by administrative order.  The amount of support payable by a non-custodial parent with a monthly net income of $20,001 or more shall be no less than the dollar amount as provided for in the guidelines for a non-custodial parent with a monthly net income of $20,000.

The guidelines do; however, expressly empower the courts to depart from the recommended child support amounts because of special circumstances.  Ms. Evangelista's "special circumstances" include a request for a full-time nanny, vacation expenses and armed chauffeurs.  It will be interesting to see how her case plays out in the Manhattan Family Court system. 

• Email This
• Print
• Comments
• Trackbacks

Today the Iowa Supreme Court released its opinion in Freedom Financial Bank v. Estate of Edward Boesen and Maureen Boesen.  Sullivan & Ward, P.C. represented Freedom Financial Bank in a mortgage foreclosure action against the Estate of Edward Boesen.  The Court affirmed the decision of the Polk County District Court and the Iowa Court of Appeals, ruling that Freedom Financial's purchase money mortgage was superior to a wife's dower interest in intestate property. 

The Court also conducted an extensive analysis of the Iowa Probate Code to determine whether the Estate or Maureen Boesen should receive the remainder of the proceeds from the sale of the subject real estate. 

Stay tuned to the Iowa Law Blog for an analysis of the Court's probate ruling and its effect.

• Email This
• Print
• Comments
• Trackbacks

The FCC issued its Final Rule on Friday, September 23, 2011 entitled "Preserving the Open Internet".  In the Rule, the FCC seeks to "preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression."  To further that goal, the FCC adopted three basic rules for fixed and mobile broadband providers:

1. Transparency: broadband providers must disclose network management practices, performance characteristics, and commercial terms of their broadband services.
2. No Blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices.
3. No Unreasonable Discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

Although all rules become effective November 20, 2011, the transparency requirement creates an affirmative duty for fixed and mobile broadband providers to disclose certain information on their websites or in their stores by November 20, 2011.  This information includes the disclosure of network practices, performance characteristics, and commercial terms. 

• Email This
• Print
• Comments
• Trackbacks

Michael J. Green, formerly associated with the Brown Winick law firm, has joined Sullivan & Ward law firm.  Mr. Green is an AV-rated attorney practicing in the area of real estate and business.  

• Email This
• Print
• Comments
• Trackbacks

During Jan Mickelson's (@amtalker) radio show this morning on 1040 WHO, I heard part of a story about two neighbors who had a dispute about a fence.  The discussion involved Iowa Code Section 359A, which is a very old statute.  Essentially, the statute sets forth the procedure under which a person can force his adjoining land neighbor to help pay for the costs of a fence between the two properties.

There are several policies furthered by this statute.  The centuries-old proverb that "good fences make good neighbors" is an obvious reason, but for agricultural states it also helps clarify farmland boundaries and contain livestock. 

This is where clarification is important:  although the radio guest noted that this statute is intended for agricultural purposes, the statute technically does not have that limitation.  The Iowa Supreme Court has held that:

So for the city-folk reading this note, you have the access to this statute as well.

• Email This
• Print
• Comments
• Trackbacks