The Cedar Rapids Gazette reported on a legal settlement reached between Bridgid Ruden, the City of Coralville, the State of Iowa, and Horsfield Construciton Company. Ms. Ruden had been riding her bicycle on a trail and lost control of her bike and crashed after hitting a patch of mud on the trail. She was in a coma, had multiple surgeries, and is unable to continue her career as a nurse practitioner. The basis for Ruden's lawsuit was that the Defendants were negligent in the manner in which the trail was designed, constructed and maintained. Generally, the State of Iowa (Iowa Code 669.14) and Municipalities (Iowa Code 670.4) are immune from tort liability, unless the negligence falls under certain exceptions. In this case, Ms. Ruden presented enough evidence to argue that the design of the trail was negligent in that it was not sloped enough to allow for proper drainage. There are very few cases in Iowa where plaintiffs have successfully argued the design exception.
The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?
A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with.
But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.
Currently, if you wish to file a claim in Iowa Courts, the jurisdictional limit for small claims court is $5,000. That means if the total damages or value you seek is not greater than $5,000 your case is filed in small claims court, and if your damages or value exceed $5,000, your case is filed in district court. Small claims court is a faster, more inexpensive process, but the procedural rules are often more relaxed, and you don't have the ability to conduct significant discovery. Currently, the Iowa Legislature is considering House File 248, which would increase this jurisdictional amount to $10,000. Stay tuned to see the outcome of this legislation.
On Tuesday, the United States Supreme Court granted certiorari in,Sandifer v. U.S. Steel Corp., a case involving compensable time under the FLSA. In the underlying case, a group of steel workers filed suit against their employer, U.S. Steel Corp., for unpaid wages for time spent putting on and taking off safety clothes necessary to perform their jobs. The clothing included, flame retardant pants and jackets, work gloves and boots, a hard hat, safety glasses, ear plugs, and a shood. (A picture of a man modeling the gear is apparently found in the opinion of the underlying case, but I can't seem to find a link!). Other issues were discussed in the case, but the only question that the Supreme Court will answer is "what constitutes 'changing clothes' within the meaning of section 203(o)?"
Generally, "donning and doffing" protective gear, clothing, and uniforms is compensable time under the FLSA. The clothing being put on by the steelworkers most certainly qualifies as protective gear so this case seems open and shut. Right?! The key factor in this case is the terms of the collective bargaining agreement in place. The agreement specifically provided that employees would not be compensated for the time spent putting on their protective clothing. Again this seems like an open and shut issue because typically, employees cannot waive their right to wages under the FLSA. However, Section 203(o) allows for a genuine collective bargaining agreement to exclude time spent "changing clothes" from compensable time.
And this is where the issue arises. What is meant by the term "changing clothes"? Is protective gear "clothes" within the meaning of Section 203(o)? The 7th Circuit believed it to be. The 7th Circuit found that despite the protective nature of the items being put on by the employees, the items were "clothes" and the action of taking the protective gear off and on was properly excluded from compensable time in the collective bargaining.
The Department of Labor issued an opinion on this matter in mid-2010. It determined that protective gear does not qualify as "clothes" under Section 203(o). The only circuit that seems to agree with the DOL is the 9th Circuit, with all other Circuits that have passed on the issue siding with the 7th Circuit. The 8th Circuit, which Iowa is a part of, has not decided the issue.
Most people are generally familiar with the legal concept of eminent domain, whereby the government can take private property for public use, upon the payment of just compensation to the property owner. It is found in the Fifth Amendment to the U.S. Constitution, and similarly found in the Iowa Constitution at Article 1, Section 18. The Iowa Legislature has provided that the power of eminent domain to be enjoyed by state agencies and local governing bodies shall be as delegated by legislative act. In the Iowa Supreme Court case of East Oaks Development, Inc. v. Iowa Department of Transportation ("DOT"), 603 N.W.2d 566, (Iowa 1999), the Court determined that the Legislature has not extended this power of eminent domain for development of recreational trials, stating: "...the DOT has no general eminent domain authority for establishing recreational trails or bikeways." Ultimately, the Court determined that the DOT could exercise eminent domain to re-develop a road by placing a bike trail next to it, since such placement of the trail helped improve traffic on the road. The takeaway from the East Oaks case, however, is that the State does not have eminent domain power for the creation of recreational trails.
You often hear about environmental sites that are required to be cleaned up. However, an Iowa Supreme Court case specifically addresses the Iowa Department of Natural Resources' ("DNR") ability to force cleanup of sites that do not pose a hazardous condition. In First Iowa State Bank v. Iowa Dept. of Natural Resources, 502 N.W.2d 164, 168 (1993), the Court noted that "specific statutory authority for adopting administrative rules relating to solid waste is provided in Iowa Code Sexton 455B.304...[h]owever, no reference is made to adoption of rules relating to cleanup of open dumps. Even the rules adopted by the DNR relating to solid waste do not provide for cleanup." Thus, the DNR has the authority to tell you stop making a mess, but in many cases, it cannot make you clean it up.
I was told last week by someone in human resources that having an employee handbook is archaic and unnecessary in today's world. The statement caused me to pause. I have been advising employers of all sizes to adopt employee handbooks to fit their company.
So I stopped to think--is an employee handbook archaic? Are there certain employers that shouldn't bother with a handbook? Should I tell all employers to destroy their handbooks? After considering the benefits of implementing a handbook, it's still my opinion that employers should provide employee handbooks to their employees.
First, the purpose of an employee handbook is to provide information to employees about the terms, conditions, and benefits of their employment. It provides an understanding between employees and management about the "house rules" and expectations. Everyone has a reference point when a question arises about a leave of absence, working hours, appropriate appearance or anything else contained in the handbook.
Second, it can satisfy an employer's legal obligation to provide notification regarding certain laws. For example, under COBRA employers are required to provide a general notice of COBRA rights and obligations to covered employees within 90 days of the active coverage effective date. The FMLA also requires employers to provide written guidance about employee rights and obligations.
Third, in practically every discrimination lawsuit any client has been involved in, the employer policies relating to harassment and discrimination are important. The existence of written policies demonstrates that the employer is cognizant of the potential for harassment and discrimination and is taking steps to prevent it. Written policies provide a defense when a lawsuit arises.
For all those reasons, I will still be encouraging my clients to adopt written handbooks and providing those to employees.
The Iowa Economic Development Authority (IEDA) has announced that it has contracted with a company called CMB to handle investment opportunities by foreign investors for Iowa projects. A government program known as EB-5 allows foreign investors to invest in an American project and immigrate to the U.S. as long as certain criteria are met. This program was initially used in Iowa for dairy operations, but is now being expanded to construction, energy, and infrastructure projects.
CMB got its start in the redevelopment of closed military bases, hence where "CMB" comes from. CMB handles all of the investor-side issues: screening the investors, tracking and verifying investor funds, and preparing all of the paperwork to conform to the EB-5 program. CMB also will review the Iowa project to make sure that it is viable and that it is a project suitable for the EB-5 program.
A foreign investor must invest at least $1,000,000 ($500,000 in areas of high unemployment or rural areas) and the project must create or save 10 jobs for the project to qualify. This program will not fund 100% of a project, so additional capital is required, making this available really only for multi-million dollar projects.
During an informational meeting yesterday, CMB urged anyone interested in this program with a suitable Iowa project to contact them early in the process, ideally before or during site selection, as the site location could make or break whether the project qualifies. If you have a project you think would benefit from this program, contact me for more information.Continue Reading...
A Florida man recently found himself in a bit of trouble following his decision to take his wife's last name. Lazaro Sopena changed his last name to "Dinh" following his 2011 marriage to his wife, Hanh Dinh. Shortly after the marriage, he obtained a new passport, Social Security Card and driver's license. One year later, Mr. Dinh was notified that his license was going to be suspended because it was alleged that he had fraudulantly obtained it. Mr. Dinh is currently appealing the suspension of his license. Grooms in Iowa who might be contemplating taking their bride's last name can rest easy - Iowa's marriage name change policy is gender neutral.
On January 17, 2013, the Iowa Attorney General issued an opinion regarding bicycle side path rules, specifically the newly-passed ordinance in the City of Grimes, Iowa. A side path rule is one that prohibits the use of bicycles within the road right-of-way when an adjacent trail is available. The Attorney General noted that the Iowa Code at 321.234(2) provides that a person riding a bicycle on the highway has all the rights and duties applicable to the driver of a vehicle. Further, the Code states that local authorities are without the power to enact, enforce, or maintain any ordinance, rule, or regulation that conflicts with the Code. Ultimately, the Attorney General concluded that the Grimes ordinance violates state law. The City of Grimes has yet to decide how it will proceed in light of this opinion. Tiffany De Masters wrote a great article in the Des Moines Register regarding the interplay between the Grimes ordinance, the Attorney General opinion, and many other related issues.