The Implementation of Electronic Filing in the Courts

In this day of technology, it is no surprise that the court systems are moving to using an Electronic Document Management System (EDMS for short) for parties to file documents with the Court, without even setting foot in the Courthouse. The district courts have been working on this conversion since early 2013; introducing and training courthouse staff before converting each county to EDMS filing. It won't be long before every district court in Iowa is available using this system.

This can be a benefit to parties who no longer have to pay an attorney to go down to the courthouse every time a signature is needed from the Judge and can allow for much quicker turnaround times on certain Orders from the Court. This also allows parties to file documents outside of the normal hours of the court and can be an advantage to clients who want to sign up and track the progress of their case using the EDMS system. For those who use the system on a regular basis, it is fairly simple to learn, doesn't require much training, and lets attorneys know almost immediately when filings are presented to the Court.

There can also be some disadvantages as it doesn't allow the attorneys and judges to have the face-to-face contact that they once had and there are times that expected documents sit out in "space" waiting for attention from the Clerk's office or a Judge so that they can be completed. It can also be harder for pro se clients who have to follow the same rules as attorneys; and without a legal background and knowledge of the technology, this can make it almost impossible for self representation.

Overall the implementation of EDMS in the courts has many advantages for attorneys and Judges in that they can more easily track cases and locate filings, it makes it easier to file documents in other counties immediately, without having to send them by mail or charge for them being hand delivered, and it makes it easier to meet filing deadlines by allowing documents to be filed any time, day or night. At this time there are only 13 counties left to be converted to EDMS, at which time every district court in the state will be accessible online. With the recent conversion of the Court of Appeals, it won't be long before most cases can be handled without an attorney ever having to leave their office chair!

Service by Facebook?

A New York judge recently entered an Order allowing a woman to serve her husband divorce papers via Facebook.  In Iowa, generally, a competent adult must accept service or be served in-person in order accomplish proper service.  The woman in New York had been trying to accomplish service for several years according to her attorney.  Her husband denied having a physical address or place of employment and also refused to make himself available for service.  After having exhausted other alternative service methods, the Judge ruled that service could be made via Facebook so long as it could be demonstrated that the Facebook account belonged to her husband and that he consistently logged on to the account.  With the increasing popularity of
Facebook and Twitter, it will be interesting to see if Iowa Courts follow suit and allow service via social media.    

Interactive Process in Action

If you’re not sure what the interactive process is supposed to look like under the ADA, peruse the facts of the 8th Circuit’s decision in Minnihan v. Mediacom.  I’m also going to summarize the facts below, but if you want to read the legal analysis too go ahead and read the full decision.

Minnihan worked at Mediacom for a lengthy period of time before experiencing a seizure in December 2009.  Under Iowa law, an individual who experiences a seizure loses his or her driving privileges for at least a 6-month period.  Unfortunately, an essential duty of Minnihan’s job was driving.  He worked about 50% of the time in the office and the other 50% of the time in the field.  Working in the field required him to drive from the office to a customer’s location.

Initially, Mediacom decided to accommodate him by reallocation his driving responsibilities to other employees.  When Minnihan experienced another seizure in March 2010, it informed him that it could no longer accommodate him and he would need to apply for a vacant position.  Minnihan did not want a new position so he hired an attorney.  Correspondence between Mediacom and the attorney took place over the next few months; however, during that time Mediacom met with Minnihan to discuss comparable positions that did not require driving.  Ultimately, the company decided to accommodate him until the 6 month period triggered by the March seizure expired.  Minnihan was able to return to full duties in October 2010. 

Minnihan experienced a third seizure in April 2011.  After this seizure Mediacom informed Minnihan that he would be transferred to a non-driving comparable position in Des Moines (about 25 miles from where he had been working in Ames).  Mediacom gave Minnihan 30 days to decide if he would accept the transfer or take FMLA leave.  Mediacom provided Minnihan with information on transportation options from Ames to Des Moines.  Rather than accept the position, Minnihan asked that Mediacom restructure his job or hire a second person to complete his driving duties.  Minnihan eventually failed to come to work and failed to complete FMLA paperwork.  He was fired the day after the 30-day period expired.

This lawsuit followed.  The 8th circuit analyzed a number of legal issues and ultimately found in favor of Mediacom on all of them.  Important to note from my standpoint is the slow and steady manner in which Mediacom handled the situation.  It appears Mediacom took steps to gather information, communicate with Minnihan, and follow-through with their plan despite the threat of a lawsuit.

Thinking about selling For Sale By Owner?

With both interest rates and home inventory starting the year at lows we haven't seen in a long time, this may be the best opportunity for you to sell your home for the most profit.  Most people hire a Realtor to help them through the buying/selling process, and if you can afford it, I highly recommend doing so.  A Realtor can list your property on the Mutlple Listing Service (MLS), can help you price it and market it appropriately, and can draw in many more potential buyers than you could probably do on your own.  With that said, if you can't afford to hire a Realtor or just want to try selling it on your own first, there are many ways to do so, but you may want to enlist the help of an attorney.

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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!