The Best Lawyers in America: Mark Landa

Mark Landa has been selected to be included in the 21st Edition of the The Best Lawyers in America for his work in the practice area of Environmental Law.  Inclusion in Best Lawyers is based on a peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys.  Mark has been included in Best Lawyers every year for over a decade.  Congratulations, Mark!

Notable Utility Related Bills Passed in 2014 Session

The 2014 session of the Iowa General Assembly brought a few changes to the public utilities law practice in Iowa. Lawmakers focused their utility related discourse on tax credits for renewable energy, renewable fuels and solar energy, purview of the Iowa Utilities Board, water service requirements, delinquent customer accounts, and notice requirements for underground facilities. Below is a summary of notable utility related bills passed by the Legislature and signed into law by Governor Terry Branstad.

WIND ENERGY/ COGENERATION TAX CREDIT: The production tax credit for wind energy and other renewable energy facilities was extended two years and the law, introduced as Senate File 2343, adds new eligible fuel sources for a cogeneration production tax credit, including methane gas, landfill gas and biogas.

RENEWABLE FUELS: Biodiesel and other renewable fuel producers can continue taking advantage of a renewable energy tax credit incentive that was previously set to expire in 2013 but is now extended through 2017. Senate File 2343 became new law and modifies the rate of the E-15 plus gasoline tax credit and provides a two cents per gallon refundable credit for the first 25 million gallons of biodiesel produced in any single biodiesel plant.

SOLAR: The total amount of solar tax credits available for residential and business installations increased from $1.5 million to $4.5 million under Senate File 2340. It also increases the maximum credit a taxpayer can claim of the federal credit available per project from 50 percent to 60 percent. The new law also increases the maximum amount of credit per project from $15,000 to $20,000 for businesses.

REGULATION OF TELECOMMUNICATIONS UTILITIES: Through Senate File 2195, Lawmakers updated certain Iowa Code sections to reflect today's deregulation of retail telephone rates. Nearly four years ago, the Iowa Utilities Board completed its gradual process of deregulating retail rates and the new bill removed code references to retail rate regulation that are now obsolete such as tariff filing requirements for retail rates, employee discounts for phone services, Board approval of rate schedules, and transferability of certificates for providing retail services. Now, telecommunications providers in Iowa are only required to file tariffs for wholesale services as specified by the IUB. The new law also authorizes the IUB to extend the time frame by 30 days for Board action regarding a formal allegation of monopoly, exclusive privilege or franchise against a local telephone exchange carrier.

RURAL WATER - House File 2192 clarified service territory matters for municipal and rural water providers. Under current law, a rural water district or association is prohibited from providing water services within two miles of a city and may file notice with the city if it intends to serve a new area within the two miles buffer. The new law requires the association to submit its water plan directly to the municipal water provider and the plan must include any area the association intends to serve within three years. The city has 75 days to respond to the notice and the new law allows the city to waive its right to serve areas or reserve its right to serve those areas later.

DISCONNECTION OF WATER SERVICES - Municipalities or city utilities and water service providers can now formalize joint efforts to address delinquent customer accounts. A water utility can enter an agreement with the city utility to disconnect service to a property if the customer account becomes delinquent and the water utility will not be liable for any damages as a result of the disconnect. The customer is responsible for all cost associated with discontinuing and reestablishing water service. The new law also provides that a city utility or city enterprise can file a law suit against the customer in district court for the cost of providing service as well as reasonable attorney fees.

IOWA ONE CALL - Iowa's owners and operators of underground facilities are required to participate in the Iowa One Call requirements established in 1983. House File 2408 modified notification requirements applicable to underground facility excavations. Currently, a notice is required to the Iowa One Call notification center at least 48 hours before digging. The new law provides that notices received after 5:00 p.m. shall be processed as being received at 8:00 a.m. the next business day and if locating and marking is done before the 48 hour window closes, the digging party can proceed with excavation once it is notified by Iowa One Call that the locating and marking is completed. Additionally, no digging shall take place within 25 feet of a natural gas transmission line or designated critical facility unless a representative of the operator of the line is present.

While 2014 saw the above changes in Iowa's utility related laws, it will be perhaps more interesting to see what changes will be proposed in the 2015 legislative session based on recent Iowa Supreme Court rulings regarding the definition of a utility and a Notice of Inquiry proceeding regarding distributed generation before the Iowa Utilities Board. These are exciting times in the utility industry, stay tuned.

Finding Fault On-line in a No-Fault State

Iowa is a "no fault" state.  Generally, this means that the conduct of either party leading up to the divorce cannot be used as a factor in awarding a property settlement or alimony.  The conduct of a party is; however, still relevant when it comes to issues such as child custody and visitation.  With social networking on the rise, your on-line conduct is something that will likely be closely scrutinized by your soon-to-be ex-spouse.  According to, a third of all U.S. divorce filings in 2011 contained the word "facebook."  If you are contemplating filing for divorce or if you are currently involved in litigation, it is a good idea to review your facebook page (or any other social networking sites) and remove any posts or photographs that could be negatively used as evidence against you. 

U.S. Supreme Court to Decide Pregnancy Discrimination Case

 On July 1, 2014, the United States Supreme Court granted certiorari in Young v. UPS, Inc. to decide “whether and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

Young was a UPS “air driver” who became pregnant in 2006.  An air driver is responsible for delivering letters and packages for immediate delivery.  The letters and packages were typically light weight; however, Young’s job description required her to be able to lift up to 70 pounds unassisted and up to 150 pounds with assistance.  Young’s doctor gave her a 20 pound lifting restriction during her pregnancy.

UPS disallowed Young from working due to the lifting restriction because (1) light duty was only offered to hose with on-the job injuries, ADA disabilities, or those who had lost DOT certification and (2) UPS policy did not permit Young to continue working as an air driver with a 20 pound limitation despite her claim that she rarely lifted anything heavier than that or could be accommodated otherwise.  Young was able to return to work after her pregnancy.

Young brought an action against UPS claiming disability discrimination and pregnancy discrimination.  The lower courts granted judgment in favor of UPS on both claims prior to trial.  Young appealed the pregnancy discrimination claim to the U.S. Supreme Court.  The Pregnancy Discrimination Act (PDA) requires employers to treat women affected by pregnancy, childbirth, or related medical conditions to be treated the same as other persons not so affected “but similar in their ability or inability to work”.  Young argued that UPS’ policy in granting accommodations to those injured on-the-job, had ADA disabilities, and lost their DOT certification but not pregnant employees was a violation of the PDA because pregnant employees were not treated equally.  In short, Young argues that if an employer accommodates any class of employee, it must likewise accommodate a pregnant employee.

Interestingly, the EEOC published Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14, 2014.  The EEOC Guidance not only agrees with Young’s argument, it appears to base one of its examples on the Young facts: 

            Example 10:  An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  the employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability work.


It's easy to determine whose side the EEOC will be on in this fight.

It’s my opinion that Iowa law regarding accommodation for pregnant employees is clearer than the Pregnancy Discrimination Act, but doesn’t necessarily cover the Young circumstances.  Iowa Code § 216.6(2) sets out the employer’s obligations for pregnancy and childbirth.  Subsection b identifies that pregnancy, miscarriage, childbirth and the recovery from each is a temporary disability and should be treated like any other temporary disability for the purpose of leave.  Because Iowa’s specific provisions regarding pregnancy and related conditions seems to apply only in circumstances necessitating leave, it would not necessarily require an employer to provide a light duty position to a pregnant employee.

The ruling in the Young case will have a great impact on Iowa employers and should be watched carefully.

Amanda James Joins Sullivan & Ward, P.C.

Amanda James has joined Sullivan & Ward, P.C. as an associate attorney.  Amanda graduated from Drake University Law School in 2008.  Since that time, she has focused her practice on public utility and regulatory work.  She will continue her work in these areas at Sullivan & Ward, P.C. 

John T. Ward and Richard R. Chabot Honored

Sullivan & Ward, P.C.'s President and CEO, John T. Ward, was recently honored by the Iowa State Bar Association as a member of the "50 Year" class of 2014.  John graduated from Drake University Law School in 1964 and has been with the firm ever since.  Recently retired, Richard ("Rick") R. Chabot, was also honored.  Rick graduated from the University of Minnesota School of Law in 1964 and joined Sullivan & Ward, P.C. in 1985.  Congratulations to John and Rick on this notable accomplishment!   

Nebraska Supreme Court Hears Arguments in Iowa Same-Sex Divorce Case

The Nebraska Supreme Court recently heard arguments in a same-sex divorce case involving two women legally married in Iowa.  Nebraska does not recognize same-sex marriages because of a constitutional amendment that was approved by voters in 2000.  So, the question before the Court, is whether or not the a Nebraska court can grant a divorce without acknowledging the marriage?  An attorney for one of the parties argues that the U.S. Constitution's "full faith and credit" clause requires Nebraska to recognize the marriage.  Given the large number of same sex-marriages that have occured in Iowa between non-Iowa residents since 2009, it will be interesting to see the outcome of this case. 

Return of the Inflexible Leave Policies

Inflexible leave policies—that is policies which provide a specified time off for personal reasons, including medical reasons—have been declared unlawful by the EEOC.  The EEOC’s position is that inflexible leave policies do not provide the individualized consideration necessary to determine whether leave longer than the specified time is a reasonable accommodation.  Accordingly, many companies have revised their leave policies.

However, a 10th Circuit case shows that the rush to revision may have been premature.  The opening statement in Hwang v. Kansas State University declares, “Must an employer allow more than six months’ sick leave or face liability under the Rehabilitation Act?  Unsurprisingly, the answer is almost always no.”  Well, that is an attention-getting line in the world of employment these days.  Let’s examine the path to such conclusion:

Hwang was a good teacher that got cancer and needed treatment.  The cancer and its treatment required her to take a leave of absence.  The University granted her a six-month paid leave of absence.  When she requested additional time, the University denied her requesting explaining that it had an inflexible policy allowing no more than six-months’ sick leave.

Hwang, according to the opinion, was not able to perform her job even with a reasonable accommodation.  Hwang could not perform any function of her job for a lengthy period of time and requiring an employer to hold a position open for such a long period of time was not a reasonable accommodation.  In a profound statement, the court reasoned that reasonable accommodations were about enabling employees to work, not to not work.  An employer is not a “safety net” for the employee.

The court also explained why it did not find the EEOC’s position persuasive.  In what amounts to construction of the language used in the EEOC’s statement, the court found that the EEOC’s position does not answer the question “when is a modification to a leave policy legally necessary to provide a reasonable accommodation?”  The answer is not “every time” as Hwang (and the EEOC) argue.

Lastly, the court reasoned that inflexible leave policies may actually protect disabled employees rather than threaten them.  Such inflexible policies have a tendency to create and fulfill expectations of fair, uniform treatment and limit unfairness in personnel decisions.

To be certain, the court did not give its blessing on any and all inflexible leave policies, but a six-month leave policy was “more than sufficient to comply … in nearly any case.”  While this case is not an Iowa case or from the 8th Circuit, it is good to see a decision that provides an employer with useful tools rather than vague uncertainties. 

Finding an Attorney

Many people come to a point in their life where they need professional legal advice and finding someone to talk to can be a very scary and confusing process.  The first step in looking for an attorney is locating someone who practices in the area you need representation. A good place to start is talking to family and friends to see if any of them have someone they can recommend.  Social media is also a good way to find recommendations if you are comfortable with sharing your need for legal advice.

Another option is searching the internet using key words such as "Legal Services West Des Moines, Iowa" or "West Des Moines Iowa Law Firm" checking with organizations, such as the Iowa Bar Association.  There are also various websites such as "The Unsecret Shopper" where you can get a more personal review like the one where our own Samantha Gronewald was featured a few years ago.

Once you locate an attorney you would like to meet with, you should start out by giving their office a call and asking a few questions.  Explain why you need an attorney and ask questions about their costs, if they offer free consultations and what information you might need to bring to your first appointment.  You don't have to go in to great detail, but make sure they have a basic understanding of what your needs are, while at the same time you can get a feel for them and what they need from you.  Sometimes just in talking to someone on the phone for a few minutes, you can figure out if this is an office or attorney you are comfortable working with or not and if it is, move forward with making an appointment to sit down and discuss your situation in greater detail.

Telecommuting as a Reasonable Accommodation

The 6th Circuit’s telecommuting decision in EEOC v. Ford Motor Co. has been creating a buzz in the employment law community.  Since the concept of telecommuting as a reasonable accommodation is not necessarily innovative, the buzz must be coming from the way in which the court appeared to bend over backwards to declare that telecommuting could have been a reasonable accommodation in this specific instance.  Rather than offer my own critique of the case, check out this blog and this one here or maybe this one if you haven’t got enough yet.  Instead, let’s see what the 8th Circuit and Iowa courts have said about telecommuting.

 [chirp. chirp.]

It’s true, my cursory search of “telecommute” and “reasonable accommodation” in Iowa and the 8th Circuit through my online legal research provider yielded one unpublished one page opinion on telecommuting from 2002.  In Morrissey v. General Mills, Inc, the court found that allowing Morrissey to telecommute would have placed an undue burden on General Mills.  Morrissey’s job as an inventory accountant required her to review only original invoices.  The invoices would have had to be delivered by a courier, which would have possibly led to the disclosure of proprietary information.  The invoices would also have had to be logged out and back in, creating additional work for the other inventory accountant.  According to the court, employers are not required to hire additional personnel, risk disclosure of confidential documents, or increase the workload of other personnel to accommodate a disabled employee.  Telecommuting was not a reasonable accommodation based on the facts presented.

The decision is clearly not a blanket opposition to telecommuting.  These facts simply weren't the right facts to support telecommuting.  As telecommuting becomes more acceptable, requests to telecommute by employees with disabilities will increase.  Be prepared for these requests. Examine your job descriptions and your current telecommuting policies.  Do they need to be revised or updated?  Have you adequately set out the need for an employee's presence in the workplace?  Do you know what technology or workplace changes would need to be made if a request to telecommute was made?   Be proactive, not reactive because it's only a matter of time before a telecommuting request is made by one of your employees.