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The Lilly Ledbetter Fair Pay Act was signed by President Obama today.  The full text of the bill can be found here.  The Human Resources News blog summarizes the Act as follows:

Specifically, the Fair Pay Act amends Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) to declare that an unlawful employment practice occurs not only upon adoption of a discriminatory compensation decision or practice but also when the employee becomes subject to the decision or practice as well as each additional application of the decision or practice. In other words, the 180-day statute of limitations will now be extended on every occurrence of an unlawful employment practice, including issuance of paychecks.

The Act was passed in response to the Supreme Court decision which dismissed Lilly Ledbetter's case against her employer.  The bill is retroactive to May 27, 2007 (the date of the decision) but does not revive claims that have already been dismissed.

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Whether you are a seasoned business owner or a relative new-comer, the issue either has or will come up sooner or later.  A customer tenders payment of a sum less then the full amount due and owing for services rendered yet the check is marked "paid in full," "acceptance of this check is payment in full," or something similar. 

The question is, what is the effect of cashing the check on the customer's account?  Under the Uniform Commercial Code (UCC)  if there is bona fide dispute between the parties and the business owner accepts and cashes the check an accord and satisfaction has occurred and the checkwriter will have a defense if the business owner would happen to take legal action for the difference. 

So, under the UCC, if there is a bona fide dispute as to the amount owed by the consumer and the check is conspicuously marked "paid in full" or something similar then the business owner can do one of two things.  He or she can either reject the payment and send the check back to the consumer or he or she can cash the check, essentially accepting the consumer's settlement offer and wiping out the rest of the debt. 

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With massive layoffs happening daily, even in Iowa (e.g. Microsoft, Electrolux, Meredith) it’s important to know your rights during a mass layoff or closing under Worker Adjustment and Retraining Notification Act (WARN).

What is WARN? WARN is a federal law which offers protection to employees by requiring employers to provide written notice 60 days in advance of covered plant closings and covered mass layoffs.

Is my employer covered by WARN?  Businesses with at least 100 full-time employees or a combination of at least 100 part-time and full-time employees who work a total of 4000 hours per week are covered by WARN.

What is a “mass layoff” or “plant closing”?  A mass layoff or plant closing occurs when:

·         at least 50 employees are laid off during a 30-day period, if the laid-off employees made up at least one-third of the workforce

·         500 employees are laid off during a 30-day period, no matter how large the workforce; or

·         an entire work site is closed down and at least 50 employees are laid off during a 30-day period.

What happens if WARN is violated?  If a business violates the WARN Act  the business is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days.

It is important to contact your attorney to discuss your specific situation if you feel your employer has violated the WARN act.

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1. Her political affiliation was constitutionally protected;
2. She suffered a deprivation likely to deter free speech or her freedom of association; and
3. Her political affiliation was at least a motivating factor in the College's decision.  A motivating factor does not amount to the only factor, but is rather a factor that motivated the University's actions.

George v. Walker, 535 F.3d 535, 538 (7th Cir. (Ill.) 2008). 

If Wagner can prove that an improper purpose was a motivating factor in the decision, the University will have to show that the same decision would have been made in the absence of the protected speech. 

If the University carries that burden, the Wagner must then demonstrate that the College's proffered reasons for the decision were pretextual and that political affiliation was the real reason for the decision.

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 The ADA requires employers to make “reasonable accommodations” for qualified individuals with a disability.  (“Disability” is a broadly defined term which can encompass a number of impairments.  Determining whether some is disabled for the purposes of the ADA can be difficult. If you have questions whether an employee may be covered by the ADA you should contact your attorney). A reasonable accommodation can include the following:

·         Making existing facilities used by employees readily accessible to and usable by persons with disabilities;

·         Job restructuring, modifying work schedules, reassignment to a vacant position;

·         Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

But what else can you do? How do you know what equipment or devices exists? Where do you find the materials you need? The Job Accommodation Network (JAN) was created to help assist employers, employees and other interested people in answering these questions. The JAN staff can help businesses by suggesting reasonable accommodations and assisting with the implementation of reasonable accommodations.  Private businesses may access JAN services by telephone, email and on-line tools. It provides helpful and practical information and guidance for employing and retaining individuals with disabilities.

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The Iowa Legislature has a number of bills it will be considering this session. Although some bills may die in committee it’s interesting to see what is being considered. Below are the bills and study bills that are currently in the House Labor Committee and Senate Labor & Business Relations Committee. You can see the full text of the bills on the committee websites. 

Senate Labor & Business Relations Committee:

House Labor Committee:

I will be tracking these bills throughout the legislative session and provide updates periodically.

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The Iowa Supreme Court’s opinion in Sims v. NCI Holding Corp., is a great example of the importance of complying with employee related statutes. Sims sued his employer for violating Iowa Code § 730.5 (drug-testing) after being terminated for testing positive for an illegal drug.  Apparently, prior to the filing of the lawsuit NCI gave oral notice of Sims' right to a second test rather than written notice as required by the statute.  It was ultimately determined that the employer did not wrongfully discharge Sims and was not required to pay Sims back pay or punitive damages or reinstate him. Because the employer failed to follow the requirements of the statute, however, it was ordered to pay Sims’ attorney fees and costs. The employer’s failure to follow a clear directive from the Iowa legislature likely cost it tens of thousands of dollars in attorney fees. It may have only cost the employer a few hundred dollars to contact its attorney and ensure that it was complying with the statute.

Photo on Flickr by singsing_sky

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Yesterday on IowaIndependant.com, Lynda Waddington reported on an 8th Circuit Court of Appeals decision on three prisoners' rights to observe their religious holiday at the Iowa State Penitentiary in Fort Madison.  The three plaintiffs are Wiccan, and sought 8 full hours to observe Samhain, their most important day of religious observance, which takes place at the end of October.  The inmates brought their suit under the Free Exercise Clause under the First Amendment of the U.S. Constitution.  The Appellate Court ruled that 3 hours was a sufficient amount of time to observe the holiday, especially given the timing and safety constraints within which the prison officials must operate.  The Iowa Department of Corrections officially recognizes approximately 12 other religions.

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Asbestos is also used in protective clothing to protect workers from flames and heat. Asbestos became more popular as the Industrial Age got rolling. It was cheap, easy to get and easy to use. Homes and buildings built prior to 1980 maintain the likelihood of containing asbestos materials. It should be known that asbestos exposure can cause many health concerns for you and your family.

When asbestos fibers are inhaled, it can cause a fatal lung-ailment known as mesothelioma. This type of lung cancer takes the lives of thousands every year and mesothelioma treatment has varied effects on patients. Since asbestos-related illness can take 20 to 50 years to show up, experts believe that the numbers of cases of both mesothelioma and asbestosis will increase over the next few years and peak in about 2015. A mesothelioma lawyer can protect victim’s rights and advocate fair compensation as a result of their asbestos attributed disease.

The Environmental Protection Agency has ordained specific regulations in handling asbestos. The removal of asbestos and toxic materials must be performed by licensed abatement contractors who are trained in these matters. Many citizen-based organizations assist the removal and disposal of asbestos in public facilities and homes. Once asbestos is removed from the location, environmentally friendly options such as lcynene, cotton fiber and cellulose should be considered.

The use of recycled building materials such as cotton fiber can reduce energy costs in the household per year up to 35 percent. As public awareness and technology continues to grow, the number of options will also be on the rise. Alternatives to asbestos allow for a healthy and safe home, free of health damaging materials.

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In the Des Moines Register today, Jeff Eckhoff wrote a story today about businessman Anthony Herman in Polk City, Iowa.  Apparently, Mr. Herman is involved in several legal battles with the City of Polk City, and began using a sign on his property to display his distaste for the City using choice statements about the Mayor and members of the City Council.  The Polk City city council "has no plans to try to interfere with his right to free speech." 
 

Pursuant to a 1971 U.S. Supreme Court case (an oldie but a goodie), Polk City might face a tough challenge regulating Herman.  In Cohen v. California, the Supreme Court ruled that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of [an] expletive a criminal offense."  Justice Harlan famously wrote that "one man's vulgarity is another's lyric."

As individuals, the Polk City Mayor and City Council could try to sue Herman on defamation grounds.  However, the City officials would probably be considered "public officials."  To prove libel (written defamation), the Polk City officials need to prove that 1) the statements were defamatory; 2) of and concerning the city officials; 3) the statements were published; 4) the statements damaged the reputation of the officials; 5) that Herman knew the statements were false; and 6) that his statements were made with reckless disregard of the truth.

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The first session of the 83rd Iowa General Assembly convenes on January 12, 2009, and a number of prefiled bills have already been released to the public.  Several will likely generate some buzz, including:

• Restricting smoking in casinos, proposed by Rep. Mark Smith, D-Marshalltown
• Local Control of Animal Confinements, proposed by Rep. Mark Smith, D-Marshalltown
• Defining Mortgage Brokers as Agents to Borrowers, proposed by the Iowa Attorney General

Stay tuned for an exciting legislative session, and check back to Iowa Law Blog for updates thoughout the session.

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 If you're an Iowa business that hires independent contractors - or at least calls those individuals independent contractors - beware.  A recent article in the Des Moines Register highlighted a recent report from the state indicated that companies are abusing the classification of independent contractor, as opposed to treating them as an employee, in order to save costs and taxes.  The state report recommended enhanced enforcement, including aggressive investigations and cooperation with the IRS.  For questions on whether your company should be treating your workers as employees or independent contractors, read our prior post on this very topic.

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