Grandparent and Great-Grandparent Visitation

I am frequently asked about grandparent and/or great-grandparent visitation.  Iowa Code Section 600C.1 discusses the circumstances in which a grandparent and/or great-grandparent may petition the court for visitation with a grandchild and/or great-grandchild.  A grandparent and/or great-grandparent may only petition the court for visitation when the parent of the minor child, who is the child of the grandparent or the grandchild of the great-grandparent, is deceased.  The court may then only grant visitation if the court finds all of the following to be true by clear and convincing evidence:

a. It is in the best interest of the child to grant such visitation;

b. The grandparent or great-grandparent had an established, substantial relationship with the child prior to filing the petition; and

c. The surviving parent's judgment has been impaired and the relative benefit to the child of granting visitation greatly outweighs any effect on the parent-child relationship.

Given the basic rule that a fit parent's decision to deny visitation to a grandparent and/or great-grandparent is in the best interest of a minor child, generally, in Iowa, grandparents and/or great-grandparents have an uphill batte when it comes to the pursuit of visitation. 

Wait! Don't Fire The Employee With A Really Sick Child!

At least not before checking with your attorney.

An interesting case from the Northern District of Iowa was recently brought to my attention.  Although no final disposition of the case occurred due to parties resolving the matter out of court, the facts and issues are important enough to bring to the forefront.  The facts are derived from the company’s motion for summary judgment and the former employee’s response to that motion:

Myers worked for Hog Slat, Inc. as a salesperson for 15 years before being abruptly terminated in January of 2013.  He had a sparkling history with the company—top sales person under his supervisor and exceeded expectations every year.  In 2008, Myers had a daughter born with a severe medical condition.  In January 2012, his daughter was hospitalized for a length period of time, resulting in approximately $1,000,000 worth of medical bills.  Two people in the company, including the CFO, were aware of the magnitude of the medical bills and were also aware that medical bills would likely continue into the future.  Shortly thereafter, Hog Slat received information that its premiums would be increasing and Myers’ daughter would be subject to a “laser”, meaning Hog Slat would be financially responsible for a larger portion of medical claims related to her.

There was evidence presented that at the time the CFO learned of the large claim, Myers was asked to restructure his billing process creating additional work for him; Myers was subject to micromanagement by the CFO, and Myers’ commission structure was being re-interpreted by the CFO.  Myers (and another employee) also went on fishing trip sponsored by a vendor and competitor.  Myers’ trip was approved in accordance with company policy; however, because he was on the fishing trip, Myers failed to send out his bills on a timely basis.  Upon returning Myers received a “pretty good butt chewing” from the CFO.  Myers was terminated two months later after requesting the company pay his commission in accordance with his interpretation of the commission arrangement in the contract.  The company stated that his termination was a result of not billing his customers while he was on the fishing trip.

Myers sued on a number of theories, including Americans with Disabilities, Interference with employee benefits in violation of ERISA, violation of the Wage Payment Collection Act, Wrongful Termination in violation of public policy, and breach of contract.  The two claims that were the subject of the motion for summary judgment and which I found interesting are the ADA and ERISA claims.

Many of the times, articles and cases, center on an employee’s disability; however, the ADA also prohibits discrimination against an employee because of his or her association with a person with a disability.  It prohibits adverse action due to expenses arising from a family member’s disability.  Similarly, ERISA prohibits discrimination for the purpose of interfering with the attainment of any right a participant may become entitled to under a plan.  In this case, Myers alleged that his termination was predicated on his daughter’s large medical claims and the company’s desire to reduce its exposure.

Because this was just a motion for summary judgment ruling, the court did not ultimately conclude that discrimination occurred, but it did conclude that Myers had at least created a factual dispute.  The unprecedented high medical bills, the significant increase in premiums and laser, the knowledge that additional medical bills would be incurred, the changes in the oversight of Myers’ work, the change in interpretation of the bonus and the timing of all the events led the court to find that a “reasonable person” could find a connection between the medical claims and the termination.  Furthermore, the court was concerned with the gap in time between the fishing trip and untimely billing and the termination.  The court also noted that no other employees had been terminated for similar conduct and the disciplinary policy outlined in the handbook may not have been followed.  Thus, the court ruled that Myers’ claim could proceed.  As stated earlier, it was settled shortly after this ruling so there is no final ruling or jury verdict on the issues presented. 

Regardless, employers should be aware that association with a disabled person is a protected characteristic and should protect against discrimination claims on such grounds.  Furthermore, employees should never be fired for insurance claims or potential future insurance claims.  So, before you fire the employee with the sick child, make sure you have some legitimate reason to back it up.

Tax Deductions for Legal Fees in a Divorce

In general, the Internal Revenue Code allows for a deduction of reasonable and necessary expenses incurred in the production of taxable income.  This may entitle you to a deduction of some of the legal fees paid in pursuit of post-separation support, alimony, taxable pension or annuity payments and other tax advice in connection with a divorce.  You should consult with a tax professional for advice on whether or not your legal fee payments are deductable.   

Non-Competes and Office Romances

Over the holiday, the Court of Appeals issued a couple of employment-related decisions regarding situations that often come up.

  1. Non-Compete Agreements/Competition with Former Employer

In Curry’s Transportation Services, Inc. v. Dotson et al., the Court of Appeals addressed the enforceability of a non-compete and competition with a former employee.  Since I want to address two cases in this post, I’m going to give the cliff notes rather than dissect the whole case.

  •  Non-compete agreements are unenforceable if they are unnecessary to protect the business interest.  CTS’s information did not require protection.  Its customers were not confidential.  It priced its service the exact same way all trucking companies price its service—rates were generally standardized across the industry.  Business in the trucking industry is not dependent upon personal contacts and relationships or confidential information.  CTS did not require most of its drivers to sign non-competes and/or confidentiality clauses.  All these facts together led the court to find that the non-compete was unenforceable.  Again, it was all the facts that led to the conclusion.  Simply requiring employees to sign a non-compete will not make it enforceable.  There must be a legitimate business interest that needs to be protected.
  • Preparation to form a competing business is generally lawful unless an individualized harm to the former business beyond additional competition results from the preparation. 

       2.   The Office Romance

 In Roche v. Davenport Cleaners et al., the facts circled around a volatile romantic relationship between two co-workers that led to the termination of the female co-worker.  Both employees engaged in derogatory speech towards each other, finally resulting in a physical altercation initiated by the female co-worker.  After termination, the female co-worker filed a sexual harassment and retaliation suit against the employer.  The employer was found not liable because the court determined that the female co-worker engaged in the name-calling and harassment and that the conduct was based on the relationship between the parties, not because the plaintiff was a female.  Let’s see what steps can be taken to prevent this expensive lawsuit.

  •  Determine if you will prohibit or limit romantic relationships between co-workers.  Will you prohibit all romantic relationships?  Will you transfer those involved in romantic relationships to different departments?  Once you’ve determined if a policy is necessary, put it in writing, distribute it to your employees and train your employees.
  • Respond appropriately to harassment/misconduct in the workplace.  Davenport Cleaners knew what was happening in the workplace.  It was aware of the name-calling between the two individuals.  From the facts presented in this case, it appears that Davenport Cleaners did little to prevent/rectify the situation.  When complaints are made (even if the employee does not “want to get the harasser in trouble”) take action.  Investigate and discipline when necessary and as appropriate.  Don’t let the problems get out of hand.

Happy New Year!

An Employer's Responsibility when Domestic Violence Invades the Workplace

 In the wake of domestic violence charges against NFL players and the public’s outrage at the NFL’s response as a business owner you may be thinking how you might respond when faced with an employee charged with domestic violence or an employee who is a victim of domestic violence.  Or maybe you believe domestic violence does not affect your workforce.

According to an article published by the ABA, one out of every four women will be a victim of domestic violence.  Additionally, almost 50% of employed victims of domestic violence report that they lost their jobs due to, at least in part, the domestic violence, and almost 50% of sexual assault survivors lose their jobs or are forced to quit their jobs.  Two-thirds of employed victims reported that their abusers harass them at work and almost 50% either missed work or were prevented from working due to the abuser.  Certainly domestic violence affects the workplace.

Employers should respond to the real potential of domestic violence in their workplace with leave policies, safety plans, and discipline policies that address such matters.  Leave policies should be adapted to provide employees with the knowledge and understanding that leave will be permitted to address the effect of violence in an employees’ life.  Likewise, since abusers have the tendency to harass the victim at work, employers should develop a safety plan that provides safety and protection to the employee during working hours, including restricted access, security, and police notification in extreme situations.  On the flip-side, employers should be prepared to respond with appropriate discipline, including termination, when an employee is the perpetrator of domestic violence, particularly when crimes are committed using the employer’s resources or during working hours.

More than policies, however, an employer should train its human resources staff or managers to identify potential domestic violence victims and handle such issues that might arise.  Employers should also inform employees that it takes domestic violence seriously by educating the employees on the policies and procedures that are available should domestic violence occur.

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 factslides.com, 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.