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Julie Elgar of That’s What She Said uses the employees of The Office to illustrate the pervasiveness of internet use in the workplace. Elgar recognizes that unmonitored internet usage can lead to a decline of productivity and even worse harassment among employees. What should employers do? As Elgar says it’s important to develop a monitoring system and inform the employees that the system is in place.   Communicating the policy to the employees reduces their exepctation of privacy in the workplace.  Inform employees of any disciplinary policy you may have regarding violations of the intenet usage policy.

 

Photo on flickr by *diggin an old dude*

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The U.S. Department of Transportation created the Common Ground Task Force in 1998 which undertook the Common Ground Study of the nations' One Call Systems.  Many recommendations came out of the Study and the Common Ground Alliance was formed to further the work of the Task Force.  Their work resulted in the Best Practices Guidance (most recently amended in March 2007) which describes the actions to be taken to reduce the damage to underground facilities and a nationwide call-in system which uses the number 811.  When you call 811 anywhere in the country it routes you to the state's One Call center.  (Iowa One Call will keep its number and will field the 811 calls.)  

 

Common Ground Iowa (CGI) is a regional partner with the Common Ground Alliance.  The CGI's stated purpose is to promote public safety through damage prevention and shared responsibility, while utilizing the Common Ground Alliance's Best Practices for advancing underground utility safety in Iowa.

 

They have created a Common Ground Iowa Steering Committee made up of Alliant Energy, U.S. DOT, Synder & Associates, Qwest, Iowa One Call, Aquila, Consolidated Utility Services, IUB, Northern Natural Gas, ELM Locating, Iowa Association of Municipal Utilities to name most that have attended their three meetings.   CGI has adopted a constitution and by-laws and is currently conducting a membership drive. They hope to elect officers at their next meeting (December) and to disband the Committee.

 

CGI's website address is http://www.commongroundiowa.com.  CGI welcomes and is actively seeking new members. 

Next CGI meeting: is Wednesday, December 12, 2007 at West Des Moines Learning Center, 3550 Mills Civic Parkway, West Des Moines, Iowa.  The meeting starts at 10:00 a.m. and will last approximately 4 hours.

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LWBJ Premier Wealth of West Des Moines, Iowa continues to expand its private office clientele list by recently adding some impressive clients to its resume.  LWBJ Premier, under the direction of President Benjamin Renzo, manages tax, accounting, business development, insurance, risk-planning, non-profit and estate planning services for high net-worth individuals.  LWBJ Premier and Sullivan & Ward, P.C. frequently work together on providing services to clients. 

Being able to provide such a high level of service to such professional athletes as Eric Steinbach, George Foster and Derrick Brooks out of their central Iowa office speaks volumes as to the credibility and traction they are getting in the market.  Way to go Ben. 

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A spurned spouse in Mississippi was recently awarded $750,000 under the theory that a rich business man committed alienation of affection by luring the wife into an affair with him.  Mississippi is only one of 7 states that still recognize the theory whereby a person can claim someone stole their wife or husband and recover damages.  The claim is rooted in the antiquated notion that a woman is is her husband's property.

Most states, including Iowa, have abolished alienation of affection as a basis for lawsuits.

While there was no mention whether the wife divorced the husband, the article did state that the wife "chose" the rich paramour over her plumber husband.  Good thing the paramour is worth $22 million; he has a hefty judgment to pay and an appeal to the U.S. Supreme Court. 

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Iowa is an at-will employment state. The term at-will presumes that employment is voluntary and indefinite for both employers and employees. Either party can terminate the relationship at any time. For employers, however, there are some exceptions to the at-will doctrine.

Obviously employers cannot violate state or federal laws when firing employees. Employers may also not terminate employees if a contract exists between the parties. Employment contracts may be the result of collective bargaining agreements or individual written contracts. 

Less obvious to some, is the fact that employment contracts may arise through the policies outlined in an employee handbook provided to all employees. Handbooks may provide employees with expectations regarding disciplinary and termination procedures. Deviations from the policies outlined in the manual may provide a basis for a wrongful termination action against the employer.

In order to prevent such an action, employers that provide handbooks to employees should follow steps to ensure that the handbook reinforces the at-will doctrine. 

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With the launching of this blog a fellow blogger and colleague, Brett Trout, challenged me to contribute to our new endeavor. About a month ago I found myself in a courtroom in eastern Iowa for two weeks trying an environmental case.  The experience I had was reinforced shortly after this trial by an email I received from a jury consultant, Harry Plotkin, (www.yournextjury.com) who sends me a monthly email with jury selection tips. 

Jury selection is really a misnomer.  What we really do as lawyers is "de-select" those jurors who may have a bias against an issue critical to our client's case.  We all have biases and beliefs which may make it difficult for us to be a fair and impartial juror on any given issue that might arise during the course of a trial. The goal of trial lawyers in jury selection is to identify the jurors who may have biases against their client's position and, if possible, challenge those jurors for cause.  Successfully challenging a prospective juror for cause is difficult.  It is almost as hard as defeating Trout in the ring.  Mr. Plotkin says,

 . . . too often lawyers ask prospective jurors the "can-you-be-fair" type questions. These questions rarely uncover any bias and are generally met with a wall of silence. The reason these questions do not work is that "no jurors feel comfortable admitting that they are biased, that they cannot be fair, that they may have trouble listening to both sides, that they already have suspicions about your case." 

The key is to have a prospective juror feel comfortable acknowledging that she/he may have a bias, concern or belief and admitting that it would be difficult for them to ignore that strongly held belief.  Once the juror expresses the "unshakeable concern" you need to have the prospective juror acknowledge that this concern, bias or belief would influence their decision in the case. One way to do that, Mr. Plotkin suggests, is to ask the following question.

Mrs. Johnson, I have no doubt that you may try to be fair. But in light of the concerns you have been telling me about, I have some doubts that you can, even if you try your hardest. Given your concerns, can you tell me that you can be 100% sure that your feelings/beliefs won't influence your thinking about this case in any way? Do you think there is any chance that your concern might be a factor - even a small one - in your verdict in this case?

Counsel for the co-defendant in my trial, Mike Coyle of Dubuque, must have read Plotkin's email before trial.   Mike comfortably got several prospective jurors to acknowledge they had "unshakeable concerns" which led to successful challenges for cause.  This was important since the judge required the defendants to share peremptory strikes when the defendants were not aligned on all issues.   

Mike's artful use of the challenge for cause and Mr. Plotkin's email reinforced that the challenge for cause is a powerful tool for counsel.  Understanding how to get a prospective juror to reveal that bias, concern, or belief and acknowledge that it will affect that prospective juror's ability to be fair and impartial is something I and others need to continuously learn to develop.

Photo on flickr by TreMichLan

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A recent article and analysis of a Florida case by Juan Antunez emphasizes the need to funding a revocable trust and what can happen if you skip that step of the plan. As this case illustrates, the best drafted trust may not handle the disposition of your assets as you anticipate if you don't properly fund the trust and the ruling from this case illustrates one of the pitfalls of failing to do just that.

In the Florida case, certain real property was never conveyed to the trust during the life of the individual who established the trust. As a result, despite specific provisions in the trust on who and how the property was to be conveyed, the property went to another individual. This resulted in the second wife getting all of this real property, which was intended to pass to the adult children from the first marriage. This was the important second step of the estate plan which the client failed or refused to follow, despite warnings by his estate planning lawyer. As a result, families were forced to litigate the issues and spend attorney fees for a determination of the matter. I doubt that the children from the prior marriage will entertain their step-mother during the holiday season.

If you're going to spend the money on establishing a revocable trust, do it right: transfer your assets to the trust.

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For small businesses written job descriptions may seem more like a hassle than a necessity. However, I would urge you to not only have written job descriptions, but take time to write good job descriptions. Well written job descriptions not only help recruit better employees but can also reduce employment discrimination issues. 

A well written job description will outline the essential functions of the position. Listing the essential functions of the job creates consistency in the hiring, evaluating, and disciplining of employees. Outlining the essential functions of the job, as well as any necessary knowledge or skills needed, makes it easier to eliminate prospective employees based on permissible reasons.  Managers will know to evaluate and discipline employees according to an employee’s performance of the essential functions. Employees will recognize that all employees in the same position are being evaluated and disciplined according to the same standards. Consistency, created through the use of essential functions, increases the chance that decisions will be made for permissible reasons.

A well written job description will be free from discriminatory language. The EEOC has provided guidance on what language should be excluded from the job description. Obviously, references to race should never be used in a job description. References to other protected classes, including gender, national origin, religion, and age should be used only if related to a bona fide occupational qualification. The EEOC also advises employers to include requirements that have an indirect effect on protected characteristics only if the requirements are related to the essential functions of the position. For example, unless it is absolutely essential that a person work on Saturday, it would be best to omit that requirement since it may have an indirect impact on persons practicing certain religions from applying for the job. 

The Occupational Information Network provides a helpful starting point for creating job descriptions. Talking to employees can also help define and redefine current positions. Remember to review your job descriptions annually to ensure they are current.

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I can't speak for all businesses, but from my perspective most businesses have a signed agreement before they provide services for either an individual or a business. However, invariably it is those transactions in which the agreement was never actually signed that cause the most problems for the business owner.  

The typical fact pattern goes something like this:   an individual wants some work done to his home, he approaches an electrical contractor for a bid,  the contractor gives the homeowner a bid, the homeowner says, "yeah, that is fine but I need the work done right away because of (insert any emergency situation here)."  

Contractor, says,  "great, it just so happens that I have some time available within your time frame, if you will just sign this agreement I will go ahead and order the material that I will need for the job."    

Homeowner, says "Yeah, I will sign it, I just can't do it today because (insert any half-baked excuse you can imagine). 

That should be definite red-flag to the contractor, or to any other business owner for that matter; however, due to a downturn in the construction industry  and perhaps being a little strapped for cash and against the contractors better judgment he reluctantly takes the homeowner at his word and begins the project. 

At the end of the day the contractor incurred the expense of the project and now the homeowner is unwilling to pay and the contractor is placed in the unenviable position of having to decide to cut his losses and move on or he can go after the homeowner for his damages, which will require a further outlay of cash and time.

The point of this post is this,  if you are going to provide a service and would like to give yourself the best opportunity to be paid for that service, then you must get the agreement in writing.  I know that this is not earth shattering information, but it is worth repeating as everyone knows that they need to put an agreement in writing, yet from time to time exceptions are made and the exception leads to a big headache. 

The bottom line is this:  If you want to increase you ability to get fully paid for every service you provide and therefore increase your bottom line then you must not perform any work before you receive a signed writing spelling out the extent of the agreement. 

If for some unknown reason you find yourself proceeding without an agreement, then my advice to you would be to begin rubbing your rabbit's foot or looking for that four leaf clover because it will likely take all of the luck in the world for you to get paid in full and on time.  If someone does not want to put it in writing then they certainly do not want to pay for it. 

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In an ideal world, when a business provides a service, the person or entity benefiting from the service promptly pays the provider for that service (assuming of course, that the service was performed as the service recipient expected).  As anyone who has been in business for longer than a week can tell you, when it comes to customers paying for the services that they receive, the world is not perfect. 

Because not all customers pay as agreed, it is imperative that before performing any work the service provider must first get a service agreement signed by the service recipient.   I know that this seems obvious and I would guess that the majority of businesses do get the bulk of their agreements in writing, yet it is always the small exceptions that end up causing business owners the biggest problems. 

Now, I know that there is portion of small business owners reading this that are likely saying to themselves:  "we do business on a handshake and a person's word is just as good as any contract," and  I would agree that that is the case 95% of the time,  but it does not take too many disputes over payment to begin to negatively effect your bottom-line.  When a service has been provided yet the recipient unjustifiably refuses to pay for that service,  then the business owner has a choice to make:  either eat the costs of the service or enlist the services of an attorney.   It has been my experience that most business owners would rather shove a stick in their eye then have to choose between those two options, but whether you like it or not, this is the decision that the business owner has to make.  

As you may have guessed, I mainly talk to the latter, business owners that chose to contact an attorney, and without exception the first question I will ask my client is whether there is a contract.  The answer to that question is determinative of the likelihood of being able to recover this debt for the business owner.   

If the answer is "yes, we have a contract signed by the service recipient and I will send it to you immediately", then I feel pretty good about the client's likelihood of recovery.  Conversely, if the client answers, "no, but...", then the client's prognosis for recovery has suffered a two-fold set back, first, it will be more difficult to prove the existence of a oral agreement to the satisfaction of a court and therefore, more attorney fees and second, and I may be generalizing here, but it has been my experience that if someone is unwilling to sign a contract for a service then they are equally unwilling to voluntarily pay for that service.

Tomorrow I will continue with part 2.

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A lousy marriage might literally make you sick.

The Family Law Prof Blog recently posted an article on this topic.

The article reports that marital strife and other bad personal relationships can raise your risk for heart disease, researchers reported Monday. Stress, a well-known contributor to health problems, appears to be the culprit.

The study, in Monday's Archives of Internal Medicine, follows previous research that has linked health problems with being single and having few close relationships. In the new study, researchers focused more on the quality of marriage and other important relationships.

While divorce can also be stressful, could it be a cure?

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Not everyone has an idyllic marriage, and some have much less.  One issue to keep in mind as you plan your estate is that in Iowa, you can't entirely cut your surviving spouse out of an inheritance, unless they consent to it.  The Iowa Code provides surviving spouse with many rights which are not affected by the testamentary documents.

For example, if you execute a will that leaves all of your assets to your secret lover, your spouse can "elect against the will" and receive basically one-third of your probate assets.  Iowa Code § 633.238 (2007).  It doesn't matter if you've been married one day or ten thousand days.  It doesn't matter if the surviving spouse is a billionaire and you're just trying to leave your small estate to your children.  The result is the same - the surviving spouse can elect out of the disinheritance under your will.

Leaving your spouse out of your will doesn't invalidate the will, but don't expect it to be binding.  You might think you got the last laugh, but your spouse will be laughing last.  If you have any concerns or special matters, you should contact your legal advisor. 

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