Cats, Dogs and No Contact Orders.

 In the coming months, victims of domestic abuse may have one less deterrent from seeking out necessary help and protection.

Under Senate File 2118, "pets or companion animals owned or held" by the parties to a domestic abuse protective order may be awarded to a protected party, giving them "exclusive care, possession or control" of the animal in question. Though the House has sought (unsuccessfully, to date) to expand this Bill to include personal property of sentimental or emotional significance, it appears both the House and Senate have recognized the concern and fear of those who stay in an abusive relationship rather than subject a pet to the same type of behavior.

To what degree this will impact the ability of parties and their counsel to negotiate no-contact agreements by consent is yet to be seen. Also, could this usher in future legislation that extends protection to other items of personal property that is otherwise addressed in family law Courts? The intent of legislators seems clear -  remove as many obstacles as possible for people who need to escape abusive situations.  

Conducting an Investigation

An employee just made a complaint of harassment or discrimination. You know you have a duty, as the employer, to investigate the employee’s complaint, but aren’t entirely sure how to conduct the investigation. Here are a few tips:

1. Understand the complaint. Take time to listen to the employee’s complaint. Understand what the employee is telling you by asking open-ended questions. Tell the employee that you are glad they brought the problem to your attention and you intend to act upon the complaint. Consider whether the complaint, if true, violates the law or company policies. Complaints that violate the law or company policies need to be investigated further.

2. Take Action. Determine if immediate action needs to be taken based on the complaint. Is the allegation serious enough to warrant a suspension or leave of absence for the harasser during the investigation? Are there documents that need to be preserved immediately? Are there computers or computer records that need to be preserved?

3. Determine who will conduct the investigation. If possible, the investigator should be someone outside the chain of command for the complaining employee. In some situations an outside investigator may be necessary. Limit the number of people involved in the investigation.

4. Plan the investigation. Take time to map out your investigation. Who needs to be interviewed? Where will the interview take place? What questions need to be answered? What documents need to be reviewed? Create an investigation log to record every step you take during the investigation.

5. Conduct interviews. If possible, being the interview process with the complainant. Ask open-ended questions, then more specific questions. Delve into inconsistencies, weaknesses, or contradictions.

6. Update and revise your plan based on the interviews. Continue requesting documents based on the interviews.

7. Make a conclusion. The point of the process is to determine if action needs to be taken based on the complaint and what action needs to be taken. Assess credibility. Review notes and storylines. Find facts that support your conclusion.

8. Follow-up with the complainant. Regardless of your conclusion, discuss the conclusion at some level with the complainant.

An investigation can provide an employer with a good defense if litigation ensues. But more than that, it tells employees that you take complaints serious and you want to keep your workplace free from harassment and discrimination.

How to Navigate Divorce in a Healthy Way

Making the decision to end your marriage can be a very emotional experience.  Oftentimes, the emotions associated with ending your marriage result in anger and/or resentment toward your soon-to-be ex-spouse which in turn can make a difficult situation even more difficult.  During this time, it is important to remember that communication and cooperation, particularly if you have children, can make the experience less traumatic for everyone involved.  In my experience, parties that have negotiated their own settlements with the assistance of counsel, leave a marriage with a much more postive outlook than those who viewed their divorce as a battle that required judicial intervention.  Remembering to communicate and cooperate are a couple of helpful ways you can navigate the end of your marriage in a more healthy way. 

What do Paralegals do Anyway?

 As a Paralegal, I’m often asked what paralegals do.  A Paralegal or Legal Assistant (the terms are used interchangeably) is a paraprofessional whose duties are not really understood by the general public.  For this reason, I think it’s worthwhile to explain not only what a paralegal does, but how we are utilized at Sullivan & Ward, P.C., to help serve our clients in the most efficient way.

The American Bar Association defines a paralegal as follows:

A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible. www.amaricanbar.org

The Iowa Association of Legal Assistants breaks the role of a paralegal down a little further:

One of the primary purposes of a paralegal/legal assistant is to enable the lawyer to be more efficient in the use of his or her time and more productive in the quality of his or her work.  A paralegal/legal assistant can relieve the lawyer of many time-consuming and burdensome tasks that in many instances can be done by a paralegal/legal assistant at less cost. www.ialanet.org/about_history.html

In short, we provide the background work to allow the attorney to be on the front lines. A Paralegal’s duties may include reviewing and organizing volumes of documents for easier review by the attorney; preparing drafts of legal documents and memos; locating and assembling information for attorneys; proofing and editing final drafts for the attorney; being on top of/knowledgeable about legal procedures and requirements of courts and agencies, and various other tasks specific to any given case. These tasks can sometimes take many hours to perform and can be billed to the client at a much lower rate when performed by a paralegal, saving the client money. Examples of things Paralegals are prohibited from doing include: representing clients before courts and giving legal advice.  Paralegals are bound by the same ethical rules as attorneys.

At Sullivan & Ward, P.C., our Paralegals, perform all of the tasks outlined above, and many others, in order to assist our attorneys in the proficient management of client case files. 

The Best Lawyers in America

Mark Landa has been selected by his peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Environmental Law, an honor that he has received each year for more than a decade.  In addition, Mark has been named the Best Lawyers' 2014 Des Moines Environmental Law "Lawyer of the Year."

Employment Law Round-Up

The State finds itself involved in another lawsuit with a disgruntled former employee.  This time the plaintiff is former DCI Agent Larry Hedlund.  Hedlund sued the Department of Public Safety for wrongful termination alleging that he was terminated after complaining about an Iowa State Patrol trooper driving 84 mph while driving Governor Branstad in April.  Allegedly two days after he filed his complaint, he was placed on administrative leave and terminated on July 16.  He is demanding at least $1 million in wages and other benefits.

Social media based firings are still making news.  In this case, two employees from Bishop Drumm Retirement Center in Johnston were fired for posting "at least one inappropriate photo of a resident on social media".  The Des Moines Register is not reporting any lawsuits arising out of this case, so perhaps Bishop Drumm used a well-drafted termination letter.

Iowa Federal District Court Judge Linda Reade ordered the EEOC to pay $4.7 million in attorney fees to the law firms representing CRST.  This is just another segment of the EEOC v. CRST saga.  You may recall that the EEOC brought a sexual harassment claim against CRST, a trucking company located in Iowa, on behalf of Monika Starke and "other similarly situated female employees".  To make a long story short, the "other similarly situated female employees" were basically non-existent requiring CRST to defend an "unreasonable, groundless and frivolous" lawsuit.  The cost of defending said lawsuit was $4.7 million, which the EEOC will now have to pay.

A neighboring state becomes the 20th state to legalize medical marijuana.  I have previously commented on workplace problems with the legalization of medical marijuana.  Apparently, the Illinois law has specific provisions related to the workplace, which should assist employer is determining their obligations when faced with an employee using medical marijuana.

Another Chink in the At-Will Employment Armor

 In Dorshkind v. Oak Park Place of Dubuque II, LLC, the Iowa Supreme Court found that terminating an employee after the employee's internal complaint regarding violation of Iowa administration rules violated public policy and constituted a wrongful termination.

The Facts:

Oak Park is an assisted living facility in Dubuque.  It is certified as a dementia-specific assisted living program, which requires it to comply with certain provisions of the Iowa Code and Iowa Administration Rules.  One such rule requires direct care staff to complete dementia-specific training.  In July 2008, the Department of Inspection and Appeals (the department in charge of enforcing the rules and regulations) did an unannounced inspection of the facility.  During the inspection, the Dorshkind witnessed what she believed to be certain supervisors falsifying state-mandated training documents for the dementia program. 

Another co-worker, Denise Schiltz, was a witness to the forgery and immediately quit her employment with Oak Park.  After her separation, she lodged an anonymous complaint with the DIA, which commenced an additional investigation into Oak Park resulting in fines and penalties.

 Dorshkind, on the other hand, continued working at the facility.  Six weeks after the forgery she informed a former supervisor of the suspected forgery.  An investigation was initiated by Oak Park after Dorshkind's allegations.  After the investigation, Dorshkind was terminated.  Oak Park specifically stated she was terminated for making "malicious statements regarding forging of documents".  Dorshkind filed suit against Oak Park for wrongful termination in violation of a public policy.

The Decision

Iowa is an at-will employment state, but certain exceptions exist, including terminations in violation of a stated public policy.  To be successful in such a claim the employee must show (1) a clearly defined public policy that protects the employee's activity; (2) termination of the employee undermines the public policy; (3) the employee engaged in the protected activity and it was the reason for termination; and (4) no other overriding business justification for the discharge exists.

 The court found that a clearly defined public policy protecting the "health, safety, and welfare of dementia patients in assisted living facilities" existed within the statutes and administrative rules relative to dementia certified facilities.  It then concluded that a clearly-defined and well recognized public policy existed which protects "whistle-blowing" by employees regarding the "health, safety, and welfare of dementia patients in assisted living facilities".

 The fighting issue in this case was whether internal reporting or whistleblowing constituted activity protected by a clearly defined public policy.  The majority opinion found that even though internal reporting was not expressly protected by statute, it was impliedly protected for a number of reasons.  The court found that whether the complaint was external or internal did not change the public-policy considerations and discharging an employee for internal reporting still undermines public policy.  The dissenting opinion disagreed with the majority's logic declaring that it was necessary that internal reporting be expressly protected by the statute or rules and regulations and citing previous case law to support its opinion. 

The Take-Away

Regardless of the dissenting opinion, it is clear that employers must be aware that internal whistle-blowing arising from statute or administrative law (not business practices or policies) may be protected under the public policy exception to the at-will doctrine.  As with any termination, documentation is important as well as careful consideration of any protected activity.   Before terminating an employee (or taking any adverse action), an employer should now be considering whether the employee has lodged any internal complaints that could be construed as whistle-blowing.    

Employment Law Round-Up

A lot has happened in the employment law world in the last few weeks.  Here's a short round-up of some noteworthy items:

The Iowa Supreme Court held that punitive damages are not permitted in claims under the Iowa Civil Rights Act.  The decision is not revolutionary and only confirms what the Court has said since the mid-1980s.  It will take legislative action for punitive damages to become available under the ICRA.

The Iowa Supreme Court withdrew its December 2012 opinion in Nelson v. James H. Knight, DDS, P.C. for the purpose of issuing a new decision.  You might recall that this case garnered national attention around the holiday season.  The employer, dentist, fired his dental hygienist because he was attracted to her and his wife was jealous.  The Supreme Court did not find this to be discrimination.  We will stay tuned to see if their decision has changed under the spot-light.

The United States Supreme Court struck down Federal DOMA.  DOMA defined "marriage" for the purpose of many federal laws, including ERISA, as limited to a union between a man and a woman.  Because Iowa permits same-sex marriage, changes will be seen with respect to ERISA plans.

 The United States Supreme Court issued two decisions regarding Title VII.  I wrote about Vance v. Ball State University previously.  In University of Texas Southwestern Medical Center v. Nassar, the Court determined that a plaintiff claiming an employer retaliated against him or her must meet a higher standard of proof than a typical discrimination case.  A typical discrimination case only requires the plaintiff to prove that the impermissible factor (race, religion etc.) was a motivation factor.  According to the Nassar opinion, the plaintiff must show that but for the illegal act the injury would not have occurred.  Stated another way, the adverse action occurred only because the employer unlawfully retaliated against plaintiff.

The EEOC has settled a number of claims around the country, including Iowa.    The EEOC alleged that a meatpacking warehouse in Mason City permitted  racially charged graffiti remained on the wall of the men's restroom for months after the company was alerted to the problem.  The company will pay $15,000 to three employees and paint the restroom with graffiti-resistant paint among other remedies.  The EEOC also settled a claim against a law firm in Washington D.C. that rescinded a job offer to a pregnant employee just two hours after she informed them that she was pregnant.  (There's nothing related to Iowa in that post, but I always find it interesting when lawyers make silly mistakes).

U.S. Supreme Court Narrowly Defines Supervisor

On Monday, the Supreme Court issued its decision in Vance v.  Ball State University.  The issue decided was which employees constitute "supervisors" for the purpose of applying Title VII anti-discrimination laws.  I previously discussed the importance of this question.  

In a 5-4 decision, the Court decided that an individual is a supervisor only if he or she is empowered by the employer to take tangible employment actions.  The court defines "tangible employment action" as the ability "to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision cause a significant change in benefits."  Individuals without such authority are not supervisors.

The Court provides a variety of reasons to support its determination, including its easy application and congruence with the reality of the workplace.

The Court's decision does not shift the legal framework present in the 8th Circuit as the definition adopted by the Supreme Court is the one that has historically been applied.  This is good news for employers in Iowa.  

Cyclist Obtains Settlement Despite Tort Immunity

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.