Return of the Inflexible Leave Policies

Inflexible leave policies—that is policies which provide a specified time off for personal reasons, including medical reasons—have been declared unlawful by the EEOC.  The EEOC’s position is that inflexible leave policies do not provide the individualized consideration necessary to determine whether leave longer than the specified time is a reasonable accommodation.  Accordingly, many companies have revised their leave policies.

However, a 10th Circuit case shows that the rush to revision may have been premature.  The opening statement in Hwang v. Kansas State University declares, “Must an employer allow more than six months’ sick leave or face liability under the Rehabilitation Act?  Unsurprisingly, the answer is almost always no.”  Well, that is an attention-getting line in the world of employment these days.  Let’s examine the path to such conclusion:

Hwang was a good teacher that got cancer and needed treatment.  The cancer and its treatment required her to take a leave of absence.  The University granted her a six-month paid leave of absence.  When she requested additional time, the University denied her requesting explaining that it had an inflexible policy allowing no more than six-months’ sick leave.

Hwang, according to the opinion, was not able to perform her job even with a reasonable accommodation.  Hwang could not perform any function of her job for a lengthy period of time and requiring an employer to hold a position open for such a long period of time was not a reasonable accommodation.  In a profound statement, the court reasoned that reasonable accommodations were about enabling employees to work, not to not work.  An employer is not a “safety net” for the employee.

The court also explained why it did not find the EEOC’s position persuasive.  In what amounts to construction of the language used in the EEOC’s statement, the court found that the EEOC’s position does not answer the question “when is a modification to a leave policy legally necessary to provide a reasonable accommodation?”  The answer is not “every time” as Hwang (and the EEOC) argue.

Lastly, the court reasoned that inflexible leave policies may actually protect disabled employees rather than threaten them.  Such inflexible policies have a tendency to create and fulfill expectations of fair, uniform treatment and limit unfairness in personnel decisions.

To be certain, the court did not give its blessing on any and all inflexible leave policies, but a six-month leave policy was “more than sufficient to comply … in nearly any case.”  While this case is not an Iowa case or from the 8th Circuit, it is good to see a decision that provides an employer with useful tools rather than vague uncertainties. 

Telecommuting as a Reasonable Accommodation

The 6th Circuit’s telecommuting decision in EEOC v. Ford Motor Co. has been creating a buzz in the employment law community.  Since the concept of telecommuting as a reasonable accommodation is not necessarily innovative, the buzz must be coming from the way in which the court appeared to bend over backwards to declare that telecommuting could have been a reasonable accommodation in this specific instance.  Rather than offer my own critique of the case, check out this blog and this one here or maybe this one if you haven’t got enough yet.  Instead, let’s see what the 8th Circuit and Iowa courts have said about telecommuting.

 [chirp. chirp.]

It’s true, my cursory search of “telecommute” and “reasonable accommodation” in Iowa and the 8th Circuit through my online legal research provider yielded one unpublished one page opinion on telecommuting from 2002.  In Morrissey v. General Mills, Inc, the court found that allowing Morrissey to telecommute would have placed an undue burden on General Mills.  Morrissey’s job as an inventory accountant required her to review only original invoices.  The invoices would have had to be delivered by a courier, which would have possibly led to the disclosure of proprietary information.  The invoices would also have had to be logged out and back in, creating additional work for the other inventory accountant.  According to the court, employers are not required to hire additional personnel, risk disclosure of confidential documents, or increase the workload of other personnel to accommodate a disabled employee.  Telecommuting was not a reasonable accommodation based on the facts presented.

The decision is clearly not a blanket opposition to telecommuting.  These facts simply weren't the right facts to support telecommuting.  As telecommuting becomes more acceptable, requests to telecommute by employees with disabilities will increase.  Be prepared for these requests. Examine your job descriptions and your current telecommuting policies.  Do they need to be revised or updated?  Have you adequately set out the need for an employee's presence in the workplace?  Do you know what technology or workplace changes would need to be made if a request to telecommute was made?   Be proactive, not reactive because it's only a matter of time before a telecommuting request is made by one of your employees.

 

The NLRB's War on Employee Policies

 {Before skipping this post because you don’t have a union, remember that the National Labor Relations Act (NLRA) applies to employers without unions too.  You can read about the application of the NLRA to non-union employers here.}

War might be an extreme description, but the NLRB has been issuing decisions that declare run-of-the-mill employee policies as unlawful.  For example, earlier this month the NLRB determined that an employer’s conduct policy was unlawful.  The unlawful provisions of the policy stated that “employees will not make negative comments about our fellow team members”, “employees will represent [the employer] in the community in a positive and professional manner in every opportunity”, and “employees will not engage in or listen to negativity or gossip”.  What’s wrong with prohibitions against gossip and being rude?  Well, the NLRB found that the prohibitions might discourage employees from exercising their rights under the NLRA.  It’s not that the employer actually disciplined anyone for engaging in protected rights it’s that the employee might believe that she can’t engage in protected conduct.

Other policies that have been under attack include confidentiality policies, social media policies, dress code policies, confidentiality during workplace investigations, and at-will employment policies.

Before throwing out all your policies and handbooks and declaring anarchy at the workplace, remember that the NLRB isn't prohibiting you from having policies.  It is requiring that the policies you have are narrowly tailored and specific about the type of conduct you expect from your employees.  Instead of pitching the policies, have them reviewed to ensure that you aren't unknowingly violating the NLRA (or any other laws!)

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.

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.  

What is a Hostile Work Environment?

The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?

A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with. 

 

But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.

U.S. Supreme Court to Define "Clothes"!

On Tuesday, the United States Supreme Court granted certiorari in,Sandifer v. U.S. Steel Corp., a case involving compensable time under the FLSA. In the underlying case, a group of steel workers filed suit against their employer, U.S. Steel Corp., for unpaid wages for time spent putting on and taking off safety clothes necessary to perform their jobs. The clothing included, flame retardant pants and jackets, work gloves and boots, a hard hat, safety glasses, ear plugs, and a shood. (A picture of a man modeling the gear is apparently found in the opinion of the underlying case, but I can't seem to find a link!).  Other issues were discussed in the case, but the only question that the Supreme Court will answer is "what constitutes 'changing clothes' within the meaning of section 203(o)?"

Generally, "donning and doffing" protective gear, clothing, and uniforms is compensable time under the FLSA. The clothing being put on by the steelworkers most certainly qualifies as protective gear so this case seems open and shut. Right?!  The key factor in this case is the terms of the collective bargaining agreement in place. The agreement specifically provided that employees would not be compensated for the time spent putting on their protective clothing. Again this seems like an open and shut issue because typically, employees cannot waive their right to wages under the FLSA. However, Section 203(o) allows for a genuine collective bargaining agreement to exclude time spent "changing clothes" from compensable time.

 

And this is where the issue arises. What is meant by the term "changing clothes"? Is protective gear "clothes" within the meaning of Section 203(o)? The 7th Circuit believed it to be. The 7th Circuit found that despite the protective nature of the items being put on by the employees, the items were "clothes" and the action of taking the protective gear off and on was properly excluded from compensable time in the collective bargaining.

 

The Department of Labor issued an opinion on this matter in mid-2010. It determined that protective gear does not qualify as "clothes" under Section 203(o). The only circuit that seems to agree with the DOL is the 9th Circuit, with all other Circuits that have passed on the issue siding with the 7th Circuit. The 8th Circuit, which Iowa is a part of, has not decided the issue.

Is the Employee Handbook Archaic

I was told last week by someone in human resources that having an employee handbook is archaic and unnecessary in today's world. The statement caused me to pause. I have been advising employers of all sizes to adopt employee handbooks to fit their company. 

So I stopped to think--is an employee handbook archaic? Are there certain employers that shouldn't bother with a handbook? Should I tell all employers to destroy their handbooks? After considering the benefits of implementing a handbook, it's still my opinion that employers should provide employee handbooks to their employees.

 

First, the purpose of an employee handbook is to provide information to employees about the terms, conditions, and benefits of their employment. It provides an understanding between employees and management about the "house rules" and expectations. Everyone has a reference point when a question arises about a leave of absence, working hours, appropriate appearance or anything else contained in the handbook.

 

Second, it can satisfy an employer's legal obligation to provide notification regarding certain laws. For example, under COBRA employers are required to provide a general notice of COBRA rights and obligations to covered employees within 90 days of the active coverage effective date. The FMLA also requires employers to provide written guidance about employee rights and obligations.

 

Third, in practically every discrimination lawsuit any client has been involved in, the employer policies relating to harassment and discrimination are important. The existence of written policies demonstrates that the employer is cognizant of the potential for harassment and discrimination and is taking steps to prevent it. Written policies provide a defense when a lawsuit arises.

 

For all those reasons, I will still be encouraging my clients to adopt written handbooks and providing those to employees.

US Supreme Court to Decide Who is a "Supervisor"

Late last month, the U.S. Supreme Court agreed to hear argument in Vance v. Ball State University. The facts of the case are not novel. Vance, an African-American, alleged that certain supervisors and co-workers discriminated against and harassed her based on her race. In one short paragraph, the Seventh Circuit determined that one of the purported supervisors was not a supervisor because that individual did not have the power to hire, fire, demote, promote, transfer or discipline Vance. It then moved on to deal with the remaining individuals and claims. 

It is that short paragraph from which the issue arises. That being, whether "supervisor" liability under Title VII applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work or is limited to those who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim. The distinction is important because under Title VII employers are strictly liable for harassment perpetrated by "supervisors". Alternatively, employers are liable for harassment perpetrated by co-workers only if the employer was negligent in discovering or remedying the alleged harassment. Roughly, an employer who takes preventative and corrective steps can avoid liability in co-worker harassment situations but not in supervisor harassment situations. 

 

The Eighth Circuit, of which Iowa is a part, agrees with the Seventh Circuit--only those who have the power to hire, fire, demote, promote, transfer, or discipline are supervisors. Therefore, if the Supreme Court agrees with the Seventh Circuit not much will change with respect to how cases are decided in our jurisdiction. If, however, the Supreme Court decides that supervisors include those who direct and oversee daily work employers in Iowa will be open to increased risk in harassment lawsuits. 

 

Oral argument in this case should occur in the Fall, with an opinion sometime after that.

Christopher v. SmithKline Beecham

Yesterday the U.S. Supreme Court ruled 5-4 that pharmaceutical sales representatives were "outside salespersons" exempt from the overtime requirements of the FLSA. This is a huge victory for the pharmaceutical companies and a huge defeat to the Department of Labor (and the sales representatives, of course). 

It's not clear whether this opinion will be notable to industries other than pharmaceutical companies because of the unique manner in which pharmaceutical companies do business. The Court's treatment of the DOL's interpretation of its regulations is important. 

 

Prior to 2009, the DOL had not taken an affirmative position on the application of the outside salespersons exemption to pharmaceutical sales representatives. The DOL had not issued guidance or opinion letters regarding its interpretation. It did not provide for notice and comment on its interpretation. The DOL had not used enforcement proceedings against the companies, despite knowing for over 50 years that the companies operated its business in such a manner. Since 2009, the DOL began submitting its interpretation that the representatives did not qualify as outside salesperson through briefs filed in cases throughout the country. While the Court admitted that enforcement decisions are not necessarily related to the agency's view regarding violations, it stated:

 [b]ut where, as here, an agency's announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute. . . . [W]hile it may be possible for an entire industry to be in violation of the [FLSA] for a long time without the Labor Department noticing, the more plausible hypothesis is that the Department did not think the industry's practice was unlawful.

It appears that, after reading the dissent, all justices agreed that the DOL's interpretation, announced by brief in 2009 after decades of inaction, should not receive deference. This portion of the decision is important to all employers, as it ensures that the DOL must put employers on notice (at least in some manner) that certain actions or inactions are viewed as a violation.

Quality Egg Settles Sexual Harassment Suit with EEOC

What's worse than having the EEOC sue your company for sexual harassment? Having it happen twice. 

The EEOC issued a press release yesterday that it settled a sexual harassment suit with Galt, Iowa based Quality Egg, LLC owned and operated by the Austin "Jack" DeCoster Revocable Trust for $85,000. The company is no longer operational. In 2002, the EEOC sued Austin J. DeCoster d/b/a DeCoster Farms for subjecting undocumented female employees to a sexually hostile environment, including sexual assault and rape by supervisors. DeCoster Farms operated at the same location as Quality Egg. The 2002 lawsuit resulted in a settlement of $1,525,000.00 to be paid to 11 women and Iowa Coalition Against Domestic Violence (ICADV) who brought charges against the company on behalf of the women. The settlement was one of the EEOC's largest recoveries in fiscal year 2003.

From the allegations in the 2002 case, it appears that management were the perpetrators of the harassment and assaults. While it appears from the recent case that management realized that it should not engage in harassment, it failed to recognize that it had a duty to prevent harassment as well. The EEOC press release states, "Quality Egg failed to take advantage of the early warning signs and sexual harassment was permitted to continue. The EEOC will take appropriate action to protect workers from egregious sexual harassment if an employer fails to do so." 

 

Sexual harassment is serious and any complaints or information regarding such conduct should be investigated immediately with appropriate action taken at the conclusion of the investigation.  Don't sit back and wait for the EEOC to knock on your door.

Social Media Policies: New Guidance from the NLRB

Yesterday the National Labor Relations Board (NRLB) issued a third memorandum regarding social media policies. Many employers have adopted social media policies that require employees to observe certain guidelines when participating on social media sites. Employees have been terminated for violating these policies. The NLRB has found that some of the policies and the terminations violate Section 7 of the NLRA. As I've discussed previously, certain provisions of the NLRA apply to all employers, not just those with unions. 

A copy of the entire memorandum can be found here. Below are a few of the highlights:

 

·         The use of broad terms such as  "confidential information" or "disparaging remarks" in a social media policy may be unlawful if not coupled with examples of the types of confidential information or disparaging remarks that are prohibited and do not interfere with Section 7 rights.

·         Restricting an employee's discussion of the "terms and conditions of employment" to other employee's is a violation of the NLRA. Employee's have a right to discuss such topics with non-employees.

·         Advising against "friending" co-workers is prohibited

·         A "savings clause", indicating that the policy is not intended to interfere with the NLRA, will not make an otherwise unlawful policy, lawful.

 

The memorandum provides a variety of different policy excerpts that were deemed unlawful and the reasons for the determination. Thankfully, the memorandum also includes a policy, in full, that was considered lawful. Some of the language in the approved policy may be considered overly broad standing alone, but the NLRB determined that in context and with the examples set out in the policy employee's would not reasonably construe the policy to interfere with their rights. Thus, it's important to include examples which provide limitations to otherwise broad language.

Take time to review your social media policy to ensure compliance with the NLRA. If you currently do not have a social media policy, I recommend adopting one.

US Supreme Court Adopts Ministerial Exception to Discrimination Laws

In the unanimous Hosana-Tabor v. EEOC decision issued January 11, 2012, the U.S. Supreme Court recognized for the first time a "ministerial exception" to virtually all forms of employment discrimination. The "ministerial exception" as announced by the Court is not a prohibition against asserting claims against religious organizations, rather an affirmative defense.

The facts of the case are straightforward: Cheryl Perich was employed by Hosanna-Tabor Evangelical Lutheran Church and School as a "lay" teach in 1999. In 2000, she completed requirements to become a "called" teacher. A called teach has the formal title: "Minister of Religion, Commissioned." She taught mainly secular subjects, but did teach a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. In 2004 she was diagnosed with narcolepsy, which required her to begin the 2004-2005 school year on disability leave. On January 27, 2005, she notified the school that she was able to return to school. The school principal responded by saying that her position had been filled and the school was concerned that she was not ready to return. On January 30, 2005 the church congregation voted to release Perich from her call and offering what amounted to a severance payment in return for a resignation. Perich declined and was terminated.

 

The Court discussed the history and implications of the Religion Clause contained in the First Amendment. The Court then recognized the "ministerial exception" stating:

 

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

 

The Court then concluded that Perich's position was that of a minister; therefore, the employment laws, specifically the Americans with Disability Act, did not apply. The court considered her calling, title, and circumstances surrounding her commissioning among other facts. The Court did note that title alone will not necessarily mean a church employee is a "minister".   The Court did not find it dispositive that Perich performed similar duties to that of lay teachers. Nor, did the Court find that the individual being considered a minister perform exclusively religious functions.

 

It is apparent that churches and religious organizations have wide discretion over their employment decisions, but should still be cautious when making those decisions.

A Lesson in Preventing & Correcting Discrimination

A recent 8th Circuit decision demonstrates the importance of responding investigating and responding to claims of harassment and discrimination.  In Crawford v. BNSF Railway Co., the plaintiffs alleged that their supervisor sexually and racially harassed them on a frequent basis.  The court granted judgment in favor of the employer because the employer was able to show that it acted reasonably to prevent and correct any sexually harassing behavior and the employees failed to take advantage of the preventive and corrective opportunities provided by the employer.

The employer not only distributed its anti-harassment policies but also followed the policies.  The company had counseled the alleged harasser previously about workplace behavior and required him to attend a seminar.  The company had a hotline employees could use to make complaints.  The company investigated each and every complaint it received through the hotline.  Upon notice of the plaintiffs' complaints, the company placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks.  The court found these facts, coupled with the plaintiffs' failure to take advantage of the complaint process or hotline, granted judgment in favor of the employer.

As an employer, you cannot prevent an employee from asserting a claim, but you can decrease your potential liability by following a few steps:

1.      Adopt and distribute anti-harassment/discrimination policies.  If you don't have any policies that prohibit harassment and discrimination adopt them now.  Make sure your employees know that you have the policies and give them a copy of the policy.

 

2.      Educate your employees.  Ensuring that your employees understand the policy means more than handing it to them on the first day of work.  Hold periodic training with your employees that depicts illegal discrimination or harassment and educate them on the appropriate ways to report potential discrimination or harassment.

 

3.      Investigate all complaints.  When an employee complains of potential discrimination or harassment investigate the complaint.  Do not dismiss a complaint because it doesn't seem valid on its face.  Interview potential witnesses, talk to managers, make a written report.  Obviously, the seriousness of the complaint may warrant a more detailed investigation, but all complaints should be afforded some level of investigation.

 

4.      Take action.  Taking action doesn't always mean discipline or termination.  You may discover that certain employees need additional training or counseling.  Sometimes a complaint cannot be substantiated.  Even in those situations, take action by following-up with the complaining employee and making a written record of your investigation.

Having a proven track record of viewing complaints as serious demonstrates to the court that your company is committed to preventing and correcting discrimination and harassment in the workplace.

Supreme Court Reaffirms At-Will Employment

A little over a year ago I wrote about the Court of Appeals' decision in Berry v. Liberty Holdings, Inc. In that decision the Court of Appeals determined that Iowa's comparative fault statute was a basis for a public policy exception to the at-will employment doctrine. I mentioned that, despite the Court of Appeals' decision, the case was far from over. 

Today, the Iowa Supreme Court issued its ruling in Berry v. Liberty Holdings, Inc., vacating the Court of Appeals decision and reinstating the district court's dismissal of the case. The Supreme Court disagreed that the comparative fault statute was a source of public policy. Rather, it found that the purpose of the law is to provide a framework or set of rules one must follow when assigning fault in negligence cases.

 

The Court explained that the statute being used to support a wrongful termination claim must "relate to the public health, safety or welfare and embody a clearly defined and well-recognized public policy that protects the employee's activities." The statute cannot deal merely with individual interests. The Court went on to explain the history and purpose of the comparative fault statute: 

 

Chapter 668 did not create any new causes of action. Rather, it created a set of rules under which the parties will try all tort actions when the action involved 'fault' as defined by the statute. Therefore, chapter 668 more closely resembles a statute that attempts to regulate private conduct and imposes requirements that do not implicate public policy concerns.

For this reason, the Supreme Court vacated the Court of Appeals' decision and reinstatned the district court's dismissal.  The decision reaffirms the Court's adherence to the at-will employment doctrine except in limited circumstances.

Employers Now Required to Post Notice of NLRA Rights

Earlier this week the NLRB issued a final rule requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA) by November 14, 2011. All private-sector businesses, except those "small employers" which the Board has chosen not to assert its jurisdiction over, are required to comply with the rule.

According to the NLRB press release, the notice will inform employees that they have a right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

 

The required notice will be available on the NLRB website and from regional offices by November 1.

Misconduct and Unemployment Benefits

In a rare appellate decision regarding unemployment benefits, the Iowa Court of Appeals upheld denial of a former Casey's employee's unemployment benefits. The facts in this case are uninteresting: the employee removed discarded soup from the garbage and took it home to feed her dog. This violated a written policy that had been provided and explained to the employee. The employee was terminated.

Generally, misconduct serious enough to justify denial of unemployment benefits is a series of infractions after repeated warnings or one major infraction of an employer's policies. Here, the infraction appears to be minor--one-time removal of $10.00 worth of discarded soup. However, the court focused not on the amount of soup or its status as garbage but on the employee's intentional disregard of rules that she either was aware of or should have been aware of.  It was the obvious intentional disregard that amounted to misconduct in the court's opinion.

 

I rarely advise employers to contest unemployment benefits, but this case does have some take away for employers who choose to contest employee's benefits.

 

1.      Have written policies and provide the policies to your employees. Casey's had a written handbook that was provided to all employees. Employees were required to sign receipt of the handbook and expected them to read the handbook. The policy about wasted foods was clearly stated in the handbook.

2.      Explain important policies to your employees. Casey's held a training meeting that specifically explained its policy regarding wasted foods.

3.      Be consistent in your enforcement. While the facts do not indicate whether Casey's terminated all employees for similar infractions, it's a good idea to be consistent in enforcement. Consistency creates expectations for employees. I would guess if the testimony had shown that Casey's had a written policy, explained the written policy, but never, rarely or even inconsistently enforced the written policy the employee would have received benefits.

The Often Overlooked Protected Class: Transgender Employees

Transgender individuals are a protected class under the Iowa Civil Rights Act and, although, not specifically identified under federal law may be protected under Title VII's prohibition of "sex" discrimination. Thus, it is important for Iowa employers to be familiar with transgender issues and steps that can be taken to prevent discrimination.

Transgender or gender identity disorder is not the same as homosexuality or sexual orientation. Transgender is when a person's gender identity doesn't match his or her genetic sex. Individuals may attend counseling and sex reassignment therapy, hormone replacement therapy and possibly gender reassignment surgery. These different treatments may result in an employee representing himself or herself as the gender corresponding to their identity, becoming more masculine or feminine and ultimately changing his or her gender completely.

 

Employers must be careful to prevent discrimination based on nonconformity with gender stereotypes. This duty applies to all employees, regardless of their status as transgender. Female employees may not be discriminated, harassed or retaliated against because they are not "feminine" enough. Similarly, male employees may not be discriminated, harassed or retaliated against for not being "masculine". Additionally, employers may be required to allow transgender individuals to "cross-dress", reference employees with appropriate pronouns, allow use of a restroom that corresponds with gender identity, or provide time off for medical appointments.

 

While transgender employees may not be prevalent in your workplace, it is important that you understand their rights and your obligations before a problem arises.

More Wage & Hour Problems

Here is another example of the importance of complying with wage and hour laws:

Lawsuit Claims Iowa Workers Owed Millions

The Importance of FLSA Compliance

In a previous post, I mentioned the importance of compliance with FLSA due to recent increase in enforcement efforts by the Department of Labor. One point I mentioned was the need for an employer to understand which bonuses needed to be included in the calculation in the appropriate overtime rate for employees. An illustration of how costly this mistake can be occurred this week. Texas company, Kinder Morgan entered into an agreement with the Department of Labor to pay $830,422 in back wages based on violations of the FLSA, including failure to include bonuses as part of an employee's regular rate. The other violations included failure to pay employees for pre-shift meetings and improper rounding of an employee's work hours. Evenlarge companies like Kinder Morgan make mistakes applying the FLSA. It's worth your time to audit your wage and hour practices to ensure compliance.

Wage & Hours Problems

The Fair Labor Standards Act (FLSA) can be difficult to understand and apply. Couple that with the fact that the Iowa Wage and Hour Division and the Federal Department of Labor are increasing their enforcement efforts and it becomes clear that employers need to ensure their compliance with wage and hour laws. There are a few troublesome areas for many employers:

1.      Classification of employees: Employees can be classified as exempt (meaning overtime pay is not required) or non-exempt (meaning overtime is required). The traditional exemptions include, administrative, executive, professional, outside sales, and computer employees. Deciding which employees fit into the exemptions can be tricky. The DOL has issued fact sheets for each of the exempt classifications that may be helpful in making the decision. You should review the fact sheets in light of the employees' job duties to determine whether you have classified employees correctly.

 

2.      Classification of independent contractors: Another major classification problem that the DOL is cracking down on is classifying individuals as independent contractors rather than employees. The DOL has also issued a fact sheet to help determine whether an individual qualifies as an independent contractor or not.

 

3.      Breaks: Employers may, but are not required to provide breaks to employees. Additionally, breaks in excess of 30 minutes can be unpaid. If you provide an unpaid lunch break (or other 30 minute break) an employee must be completely relieved of their duties. The problem arises when employees fail to take the designated break. If an employee fails to take the designated break, you are required to pay that person for the time worked, which may result in overtime hours for that employee. It is important that you monitor and enforce any unpaid lunch break that you provide.

 

4.      Bonuses: Bonuses paid to non-exempt employees may need to be included in determining the employee's regular rate for the purposes of determining the appropriate overtime rate. Discretionary bonuses are not included in an employee's regular rate.

 

5.      Policies restricting overtime: Policies restricting overtime or requiring authorization for overtime are lawful. Policies such as these, however, do not exempt an employer from paying overtime if an employee works over 40 hours in a workweek. An employer may discipline an employee for working overtime or not getting authorization, but must still pay the employee for all hours worked in the workweek.

 

There are a number of other problems that many employers face when applying the FLSA, particularly relating to determining "hours worked". If you have questions about any of the listed problems or potential problems you face you should contact your attorney.

A Cure for Abuse of Medical Leave Policies?

 

As an employer, do you ever feel like your employees take advantage of sick and/or medical leave policies and you have no recourse? 

 

In a recent case, an employer implemented a policy that restricted an employee from leaving the immediate vicinity of their home during sick leave unless leaving for medical treatment or ordinary and necessary activities directly related to personal or family needs unless the employee received permission. When the employer discovered that an employee went on a one-week vacation to Cancun while on valid FMLA leave and receiving sick pay, the employee was terminated. The court sided with the employer stating that a policy which prevents employees from abusing leave is not prohibited unless it conflicts with or diminishes the rights provided by the FMLA.

 

In an overview of the case at Business Management Daily, three points that an employer can learn from this case include:

  1. Have a clear sickness and absenteeism policy
  2. Distribute the policy
  3. Enforce the policy evenhandedly

While a policy may not be a complete cure, it could the medicine you are looking for.

 

 

 

Starbucks Says "Stools Are Dangerous"

A Starbucks employee who was also unfortunate enough to be a dwarf was terminated after asking for a stool to perform her job.  Starbucks claimed the stool would present a danger to other employees or customers.  The EEOC has filed a federal lawsuit against Starbucks under the Americans with Disabilities Act for refusing to provide a reasonable accommodation to the employee and terminating her.

I try to give the benefit of the doubt to all parties--at least initially--but I'm not certain what Starbucks was thinking.  This may be a good case of "what not to do" when confronted with a request for a reasonable accommodation.

What should Starbucks have done?  At the very least, it should have had a discussion with the employee before apparently acting so rashly.  At the most, it should have provided the stool and let her complete her tasks and keep her job.

Drug Testing Policies

 

Iowa law allows an employer to conduct drug or alcohol tests on employees in certain circumstances if certain rules are followed.

 

1.      You must have a written Drug Testing Policy that has been provided to your employees before you can administer a drug test to an employee.

2.      The written policy must provide the disciplinary and/or rehabilitative actions that will be taken against those who test positive or refuse to test. 

3.      If you test for alcohol you must establish an alcohol concentration level at least .04 or greater as the standard.

4.      You must have require a supervisor involved in the testing to attend at least 2 hours of initial training and 1 hour of training every subsequent year. 

5.      You must establish an awareness program to inform employees about the dangers of drug and alcohol use in the workplace.

6.      You must follow specific procedures when conducting a drug and/or alcohol test.

 

The State of Iowa has produced a work-place drug testing guide for more details and answers about drug-testing in the work-place. If you would like to adopt a Drug Testing Policy for your company you should contact your attorney to ensure that you are following all the guidelines.

Accommodations for Disability-Caused Misconduct

The Americans with Disabilities Act protects individuals with disabilities from adverse employment action. The recent amendments to the ADA expanded the scope of disability, making it more likely that people can and will be considered disabled for the purposes of the Act. An employee considered to be disabled under the Act may be entitled to a reasonable accommodation. At times, the accommodation will be a direct conflict of your company's written policies. 

For instance, your attendance policy requires employees to call in at least 30 minutes prior to their start-time if they are sick. Violation of the policy may result in disciplinary action. However, a disabled employee may periodically need to be late due to the disability but not know 30 minutes in advance of their start-time. You accommodate their disability by allowing them to call in as soon as practicable without disciplinary action. That seems pretty simple and harmless.

 

What about the employee with Tourette's Syndrome or bipolar disorder which may cause the employee to lash out with obscenities, derogatory remarks or threats of violence during an episode? The conduct would be considered disability-caused conduct, but what is an employer's duty to accommodate such conduct?

 

While there is no clear line (did you actually expect one in employment law?) and each case must be handled on a case-by-case basis consistent with the facts and symptoms of the employee's disability (of course) a recent California case held that threats of violence made by an employee during a manic episode were not protected disability-caused conduct and the employer was justified in terminating the employee for her conduct despite being caused by her disability.  The court stated that "there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers".  Referencing the EEOC Enforcement Guidance manual, the court further stated that "nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability." The termination was based on a legitimate non-discriminatory reason despite being disability-caused conduct. 

As with all high-risk terminations it's important to contact your attorney to discuss all issues prior to terminating or disciplining.

Flavor Flav Has Wage and Hour Problems

Wage claims and the proposed amendment to Iowa's Wage Payment Collection Act have become a hot-topic for the media lately (see here and here). Today's Des Moines Register highlighted the complaints against Flavor Flav's Chicken in Clinton, Iowa that have recently surfaced.  More information can be found here. The article doesn't say how many complaints have been made, but apparently 15-20 workers have been terminated recently and some of them may not be pleased about it… or it may be the paychecks that bounced that have caused their displeasure. Only time will tell.

Proposed Amendments to Iowa Wage Payment Collection Act

On March 8, 2011 the Iowa Senate passed S.F. 311, which amends Iowa Code Chapter 91A, Iowa Wage Payment Collection Act. Below is a list of important changes:

·         Employers will be required to do the following

o   Notify employees in writing at the time of hiring wages and regular paydays

o   Notify employees in writing whose wages are determined based on a task, piece, mile or load basis about the method used to calculate wages and the wages are earned

o   Notify at least one pay period prior to the initiation of any changes regarding calculation of pay, wages, regular paydays. The notice must be in writing.

o   Upon written request provide a written statement enumerating employment agreements and policies with regard to vacation pay, sick leave, reimbursement for expenses, retirement benefits, severance pay or other matters.

o   Failure to maintain payroll records showing hours worked, wages earned, and deductions made for each employee raises a rebuttable presumption that the employer did not pay the required minimum wage.

 

While many of these things were included in the statute previously, the amendment eliminates the requirement that the request come from the commissioner. Now, all employers will be required to comply with this section.

 

·         Liquidated damages are available whenever an employer fails to pay wages or reimburse expenses. The amendment removes the "intentional" requirement.

 

·         The amendment explicitly prohibits retaliation against anyone for exercising their rights or assisting one in exercising their rights under this chapter.

 

The bill now will move to the House. 

What You Need to Know About the NLRA

The majority of non-unionized businesses tend to ignore the National Labor Relations Act (NLRA). Doing so, however, could cause problems in your organization. Below is a list of things even non-union employers need to know about the NLRA.

1.      NLRA protects activities of employees who have joined together to achieve common goals. It may include individual action taken on behalf of the group. For example, it can include complaints by an individual employee to management at a group informational meeting.

 

2.      Complaints or protests to management regarding wages, hours, or other terms and conditions can be protected. This means that certain confidentiality policies are prohibited. Employees cannot be precluded from discussing wages, hours, terms and conditions of employment.

 

3.      Non-fraternization policies are generally prohibited. Employers may still preclude romantic relationships, but should ensure that policies prohibit such relationships are tailored very narrowly.

 

4.      Broad prohibitions against abusive or threatening language may be unlawful. It has been determined that language that may be considered threatening or abusive may be used when an employee is exercising their rights under the NLRA. Policies reference abusive and threatening language should be reviewed.

 

5.      Unrepresented employees have the right to have a co-worker present at a meeting if the employee has a reasonable belief that he or she will be subject to discipline.

 

What's the takeaway? Review your policies and make sure you aren't unlawfully prohibiting certain behaviors. Employees cannot be disciplined or terminated for engaging in protected activities. If you have any questions about whether something constitutes protected activity or whether your policies are tailored narrowly enough contact your attorney.

Update: Bernstein v. Bribriesco & Associates

Previously I discussed Bernstein v. Bribriesco & Associates, a case regarding the Iowa Wage Payment Collection Act that was pending before the Iowa Court of Appeals. I had the opportunity to listen to the oral arguments, but was not privy to all the facts. The case has been decided. 

I suggested that Bernstein should be entitled to liquidated damages despite the fact that Bribriesco has paid all wages prior to Bernstein filing suit. The Iowa Court of Appeals, apparently did not agree with my reasoning or Bernstein's reasoning. Rather, the Court held that liquidated damages are not available under chapter 91A in the absence of some unpaid wages. 

 

Take away:  Although I would never advise any of my clients to do this, the Court of Appeals seems to be giving its blessing for employers to hold an employee's paycheck until just before the employee files an action.  However, the employer better be good at guessing when the employee will file his action.

Should an Employee Get Liquidated Damages After All Untimely Wages are Finally Paid?

Keep your eyes open for the Iowa Court of Appeals' decision in Bernstein v. Bribriesco & Associates. Yesterday I had the opportunity to listen to a few oral arguments before the Iowa Court of Appeals. The Bernstein case, in particular, caught my attention because of its employment law aspect.

What I gathered from the arguments was that Mr. Bernstein was terminated from his employment with Bribriesco & Associates. Apparently, he did not receive all the wages owed to him within in a timely manner, but did receive them at some point. Even though he received the wages, albeit untimely, he filed an action for liquidated damages (which are essentially a punishment for intentionally failing to pay wages) under section 91A, Iowa Wage Payment Collection Act.

 

The question to be considered by the Court is whether Mr. Bernstein is entitled to liquidated damages if he received all his wages prior to filing his action. I tend to agree with Mr. Bernstein's interpretation that liquidated damages are calculated, in accordance with the statute, from the time of the violation and are not wiped out once an employer pays past due wages to an employee. 

 

The public policy set forth in Chapter 91A is for employees to receive wages in a timely manner. Liquidated damages are available to an employee when an employer intentionally fails to pay wages. It is a deterrent to employers. Disagreeing with Mr. Bernstein's argument eliminates the deterrent and creates a loophole for employers who intentionally withhold wages. An employer could withhold an employee's wages and then, just before the employee files an action, write a check for all the wages and have no penalty. I think that defeats the purpose of Chapter 91A and the reason for liquidated damages.

 

It will be interesting to see if the Court of Appeals agrees.

Unauthorized Overtime

The Fair Labor Standards Act requires employers to pay non-exempt employees at least time and one-half for all time worked in excess of forty hours in a week. An employer that knows or should have known that an employee worked overtime while off the clock may be subject to lawsuits by employees and/or investigations by Iowa Workforce Development or the Department of Labor. While management has the right to insist that overtime hours be approved in advance, workers also have the right to be paid for all overtime worked, even if that overtime was not preapproved. 

Supervisors should be instructed to approve timecards that include overtime, even if such overtime was not preapproved. Employees should be informed that even if they did not secure approval prior to working the overtime, it must be reported. Employers may make the failure to pursue or obtain preapproval a disciplinary matter; however withholding the overtime compensation is an unlawful form of discipline. It is important that your overtime policy reflect this information.

Court of Appeals Chips Away at the "At-Will" Doctrine

Iowa adheres to the “at-will” employment doctrine, which simply states that an employee can be discharged for any lawful reason or no reason at all. A termination is wrongful when it violates public policy. In Berry v. Liberty Holdings, the Iowa Court of Appeals determined that Chapter 668 of the Iowa Code, which allows injured persons to bring a claim against the negligent individual, serves as the basis for a public policy exception to the at-will employment doctrine.

Berry was an employee for Liberty Holdings. The owner of Liberty Holdings also had an ownership interest in Premier Concrete Pumping. On his way home from work one day Berry was hit by a Premier Concrete Pumping truck and injured. Berry brought a personal injury suit against Premier to recover for his damages, which was settled. A few months later, Berry was terminated.

 

In the decision, the Court stated that “nothing could be more fundamental than the right of reasonable access to courts to protect those inalienable rights possessed by all persons and recognized by both the United States and Iowa Constitutions.” While the overall purpose of Chapter 668 is to establish a system for apportioning fault in negligence actions it also includes the state’s expressed policy that its citizens may seek legal redress for an injury caused by another’s negligence. If the Court chose not to expand the public policy exception to include Berry’s claim, it felt that employees may be forced into giving up certain well-recognized rights.

 

This is not the end of this case, however. Judge Vaitheswaran dissented stating that Chapter 668 does not define a right; therefore, cannot be the basis for the proposed public policy exception. Liberty Holdings may appeal this decision to the Supreme Court of Iowa. The Supreme Court of Iowa may agree with Judge Vaitheswaran.  

 

Further, while Berry has won this battle, he still must prove that he was terminated because he filed a claim against Premier before he can recover. This opinion contained no facts that would suggest one way or another whether Berry’s claim will be successful.  It will be interesting to see what happens in the future.

New Required Holiday: Veteran's Day

Did you know that a new law passed in Iowa requires employers to give veterans Veterans' Day off in certain circumstances?

New Iowa Code section 91A.5A mandates that all employees who are veterans are entitled to a holiday on Veterans' Day, November 11.  The holiday may be paid or unpaid.  An employee who wishes to take this holiday must make his or her request known to the employer at least 30 days prior and provide a federal document that demonstrates his or her eligibility.  The employer is required to notify the employee at least 10 days in advance if the holiday will be paid or unpaid.

To my knowledge, this is the first holiday employers are required to give employees under Iowa law.  All other holidays given to employees are discretionary.

Iowa WARN Act

On July 1, 2010 Iowa's version of the federal WARN act went into effect.  The Iowa Workforce Development has a quick facts chart comparing the Iowa and federal law.   Additionally, the Iowa House Democrats posted a summary guide of the bill explaining the benefits and need for the law as well as a brief summary.  Now employers with at least 25 employees must give 30 days' notice to employees or their representatives and IWD of layoffs or closings resulting in the termination of 25 employees or more.

Medical Marijuana Update

It looks like employers may be saved from the nightmare the legalization of marijuana could have on employer policies. A few weeks ago I discussed the possible effects the legalization of medical marijuana could have on employers. It seemed that the Iowa Legislature may have been headed that direction, but a Des Moines Register article published earlier this week indicates that the legalization of medical marijuana has stalled again.

Back to the Basics: Americans with Disabilities Act

The Americans with Disabilities Act is a federal law which protects disabled employees from discrimination. Chapter 216 of the Iowa Code provides protection for disabled workers as well.

A covered employer under the federal law means any business with at least 15 employees. The Iowa law covers all businesses with employees.

Both the federal and state laws protect qualified individuals with a disability against employment discrimination. Disability includes a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Much has changed with respect to who qualifies as a having a physical or mental impairment. A good rule of thumb is to start with the assumption that the person meets the definition of disabled and work from there. If you have questions contact your attorney. The other two definitions of disabled—having a record of such an impairment or being regarded as having such an impairment—generally go unnoticed, but it is important to remember that even someone without a disability can be covered under these laws. 

A qualified individual is one who can perform the essential functions of the job with or without a reasonable accommodation. For this reason, identifying the essential job functions with job descriptions is important.

 

If a person is disabled under the ADA or Iowa law, the employer is required to reasonably accommodate the individual unless it would impose a great hardship on the employer. It is important for employers to discuss with the employee reasonable accommodations that will assist the employee in performing his or her job duties. Refer to my previous post, if you are having trouble identifying a reasonable accommodation. Remember you do not necessarily have to accept the employee’s suggestion if a different accommodation will allow that person to perform his or her job duties.

Upper Midwest Employment Law Seminar

This weekend I will be heading to St. Paul, Minnesota for the 2010 Upper Midwest Employment Law Seminar. This will be my 3rd year attending. I am looking forward to hearing great speakers and receiving updates/refreshers on employment related topics. The seminar isn’t just for lawyers either.  The seminar includes practical sessions which teach HR personnel the application of the law as well.  If your business has human resources personnel you should consider sending them to the seminar.

Back to the Basics: FMLA

With the myriad of federal and state employment laws it’s easy to forget the basic application principles of each one. For the next few weeks, I plan on taking the time to outline the basic application factors of certain state and federal employment laws. It may seem basic, but getting back to the basics is helpful for a beginner in the employment law field and a good reminder for the seasoned veterans. I will begin with the Family Medical Leave Act (FMLA).

  • The FMLA applies to employers who have had 50 or more employees in 20 or more calendar weeks.
  • Eligible employees must meet the following criteria:
    • 12 cumulative months of employment within the previous seven years unless the break in service was for National Guard or Reserve military service or per a written agreement.
    • 1,250 hours actually worked during the 12 month period
    • Works at a site with 50 employees or where the employer has 50 employees within a 75-mile radius
  • The FMLA provides 12 unpaid workweeks of leave in a designated 12-month period for eligible employees and for the following reasons:
    • Birth, adoption or placement of a child for foster care
    • When the employee has a “serious health condition” that makes him/her unable to perform the functions of his/her position
    • The employee is needed to care for the employee’s parent, spouse or child with a “serious health condition” and
    • Qualifying exigency leave
  • The FMLA provides 26 unpaid workweeks of eave in a single 12-month period to care for an injured service member.
  • The FMLA leave may run concurrent with paid-time-off but employer’s can enforce notice policies for vacation and sick leave. For example, if an employer requires two weeks’ advance notice for vacation requests, an employee must give notice two weeks in advance to substitute vacation time for FMLA leave, even for unforeseeable FMLA leaves.
  • Leave may be consecutive, intermittent or on a part-time basis.
  • Employees must give 30 days’ notice if the leave is foreseeable. For unforeseeable reasons employees must give as much notice as practicable, which has recently been defined as within the deadlines and following the procedures prescribed by the employer’s usual notice requirements for missing work.
  • Employers are required to provide 4 notices to employees:
    • A general notice
    • An eligibility notice
    • A rights and responsibilities notice
    • A designation notice
  • Employers may request certification, recertification every 6 months for an ongoing condition, and require employees to submit a fitness for duty certification under certain circumstances
  • Employer must maintain health insurance coverage on FMLA leave on the same terms as if the employee continued to work, but is not required to maintain non-health benefits during unpaid leave provided that such benefits do not accrue for employees on other types of unpaid leave.
  • Generally, employees are entitled to return to a position that is the same with respect to job duties, pay, benefits and terms and conditions as before leave.

For more detailed information on the FMLA rules and regulations visit the Department of Labor's website or speak to your attorney.

Medical Marijuana Use: What This Means for Employers

Last week, the Oregon Supreme Court ruled that employers are not required to accommodate the use of medical marijuana in the workplace. A great summary of the facts and reasoning behind the decision can be found here. The bottom-line is that marijuana, despite being legalized for medicinal uses in a number of states is still considered an illegal drug under federal law, and employers are not required to accommodate its use.

In 2008, the California Supreme Court went one step further by ruling that employers are not obligated to accommodate the use of medical marijuana off-site. The ruling wasn’t available on

the California Supreme Court website anymore, but you can read a summary here.

 

What does this mean for Iowa employers? For now, nothing. But the legalization of marijuana for medical use has recently been creating a stir in Iowa.  In March of this year the Iowa Board of Pharmacy recommended that marijuana be legalized for the purpose of medicinal uses. They plan to propose legislation to the Iowa Legislature during the 2011 session. If the legislation passes, which some predict will happen, what does this mean for employers with a zero drug tolerance policy? Will accommodations need to be made for employees who consume marijuana off-site or on-site?

 

The California and Oregon rulings are only the “law of the land” in California and Oregon.   Those rulings will not be definitive for any situations that may arise in Iowa. In fact, other states with medical marijuana statutes have implicit or explicit protections for employees written into the statute. Any decisions under those statutes will likely be different than the California and Oregon rulings. Clearly, the language of any law passed by the Iowa legislature will be important in determining an employer’s obligation with respect to employees who use marijuana for medicinal purposes. 

 

Even though no Iowa law exists currently, employers should be cognizant that any law passed legalizing medical marijuana use may have major implications on current employment policies. Employers should be ready to implement new policies and address the situation when/if the legislature passes a law legalizing marijuana for medicinal use. Such policy amendments may be required by the implicit or explicit language of the statute or be based on an employer’s individual decision relating to its employee’s medicinal use of marijuana.  Change may be coming and employers need to be prepared.

No Protection for Employees Aiding Injured Employees in Claiming Worker's Compensation Benefits

The Iowa Supreme Court ruled today that discharging an employee for aiding injured employees in claiming worker’s compensation benefits is not unlawful. At-will employees may be terminated for any lawful reason. One unlawful reason Iowa recognizes is discharging an employee for pursuing worker’s compensation benefits. In this case, the supreme court was to determine whether that exception should be broadened.

In this situation Ballalatak was not the injured employee. Ballaltak was the supervisor of two employees who had been injured on the job. When Ballalatak inquired as to whether the employer was lawfully handling the worker’s compensation claims of two injured employees he was terminated. Ballalatak argued that the pursuit of worker’s compensation benefits exception should extend to employees who attempt to help the injured employee receive worker’s compensation benefits. He pointed to Iowa’s OSHA laws and regulations, wage payment collection actions, and discrimination laws to support his claim. The Supreme Court disagreed. In each of the noted statutes, there is clear language that prevents employers from retaliating against other employees who assist or participate in a proceeding or action brought by the injured employee. Iowa’s worker’s compensation laws and regulations have no such express policy. The public policy protection found in Iowa’s worker’s compensation statutes protects the injured employee, but does not extend to those who assist the injured employee. 

 

Although Ballalatak was doing something presumably commendable—assisting injured employees in assuring their rights were not being trampled upon—Ballalatak was not wrongfully discharged. This case is an example of the court’s unwillingness to deviate from the at-will employment structure and the difficulty in proving wrongful termination.

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

Improper Interview Questions

Last week I was talking with a friend about the recent job interviews she has had. I was shocked at the questions she was asked and comments that were made to her during her interviews with attorneys. Because apparently even attorneys need guidance on appropriate interview questions and techniques, I have a few reminders listed below:

·         Consider candidates based solely on their qualifications for the job. 

·         Do not make any statements that would cause an applicant to believe he/she is guaranteed a job or will have permanent employment.

·         When asking questions avoid the following as it may be viewed that you are making decisions based on discriminatory criteria. Do not make comments regarding the same as well.

 

-        Marital status: What is your marital status? Are you married? What does your husband/wife do?

 

-        Age: How old are you? When did you graduate from high school?

 

-        Disability: Are you disabled? Have you ever filed worker’s comp claim? Will you take a physical exam before we offer you a job? If the disability is apparent you may ask whether the applicant will need a reasonable accommodation and what accommodation is needed.

 

-        Religion: What’s your religion? What church do you attend? What religious holidays do you observe? Does your religion prohibit your working on Saturdays? Are there any holidays on which you cannot work?

 

-        Gender/Sex: Are you pregnant? What are your family plans? How many children do you have? What will you do with your kids while you’re at work?

 

-        National Original/Race: Where were you born? Are you a US Citizen? What languages do you speak (if not a job requirement)

 

-        Financial Condition: Have your wages ever been attached? Have you declared bankruptcy? Do you own or rent? These questions are not permissible unless directly relevant to the applicant’s suitability for the position.

 

-        Avoid personal questions as they may be seen as relating to sex, religion, ethnicity or other prohibited areas.

 

If in doubt, if it’s not job related, don’t ask! You are trying to find the best candidate for the job and the best candidate for the job is the one who can complete the job related functions.

 

A Law for Breastfeeding Mothers?

A couple weeks ago I posted about the difficulties breastfeeding mothers may face in the workplace.  An article in today's Des Moines Register highlights the same issue and discusses potential legislation in the Iowa Legislature.  Unfortunately, the article indicates that the legislature may table this topic pending the development of the new federal law signed on Monday.  (The federal law apparently only applies to employers with 50 or more employees).  For now, breastfeeding mothers in Iowa may need to rely on their persuasive skills to obtain a clean, private place to express breast milk at work. 

Is Your Office Ready for March Madness

It’s March Madness! Pick your teams, fill out your bracket and turn in your $5 to the office pool manager… or not? Are office pools legal under Iowa law? According to Iowa Code Section 99B.12 individuals may participate in social gambling if:

1.      The gambling is incidental to a social relationship between all participants

2.      The gambling is not on school property

3.      All participants are individuals

4.      The gambling is fair and honest

5.      No person receives or has the right to receive compensation except if they are the winner of the pool.

6.      The participant is not a coach, official, player or contestant in the athletic contest

7.      No participant wins or loses more than $50

8.      No participant pays an entrance fee, cover charge, or other charge for the privilege of participating in gambling or for the privilege of gaining access to the location in which gambling occurs.

9.      Everyone has the opportunity to deal, if dealing is required.

 

So before you turn in your bracket make sure your office is following all the rules. Go Panthers!

Lickliter Ousted for $2.4 Million

The University of Iowa fired men’s basketball coach Todd Lickliter yesterday. Lickliter was terminated after leading the Hawkeyes through three disappointing, losing seasons. What is shocking to most people is not that he was terminated, but that the University is paying him $2.4 million to leave. Many see it as a reward for doing a terrible job. Lickliter, however, is one of very few employees that was employed pursuant to a contract. The University cannot just terminate him like an at-will employee (see my previous post about at-will employment). When the University hired Lickliter they promised to employ him for 7 years at $1.2 million per year. The University decided yesterday that 7 years was too long and terminated him after only 3. Thankfully, the University had a termination clause in the contract that allowed them to terminate him at a buyout of only half of his contract rate ($600,000 per year). Otherwise Hawk fans may have been looking at $4.8 million to get rid of Lickliter and bring in a winning coach hopefully… Keno Davis anyone?

The Breastfeeding Employee

Do breastfeeding employees have any protection under the laws? That was the question I wanted an answer to after learning from other women that some employers were not supportive of their decision to continue breastfeeding upon return to work. The employers of the women I talked to did not refuse to allow the women to pump at work, but did not make it easy for them either. Many of the women did not have regular breaks or a private and convenient place to express their breast milk. 

Unfortunately, as of 2009 approximately 15 states have enacted laws that protect a lactating employeeIowa is not one of those states. Of the states with laws, none provide a lactating employee any time, other than their normal breaks, in which to pump and only a few require the employer to provide a lactation area. I would argue that such laws do not effectively provide any protection to a lactating employee. Without adequate time and a private area, many women would abandon the idea of continuing to breastfeed their children.      

 

With all the benefits that breastfeeding provides for both mother and child, it would be beneficial for employers to support mothers who wish to continue breastfeeding upon their return to work. I am lucky to work for an employer that has supported my decision to continue breastfeeding upon my return to work. For those of you with employers that may not prohibit you from pumping at work, but do not necessarily encourage you, talk to your employer before the issue arises. Perhaps your employer has never been faced with the issue or the issue has never been discussed. Employers, think about this issue prior to a request from an employer. Think about whether you can create a private place for a lactating worker or provide such employer with additional time in which to pump. Thinking about it now may reduce future problems. 

Employers and the H1N1 Virus

Employers need to be aware of the effect the H1N1 flu virus may have on its workforce this winter and be prepared to deal with issues that arise. According to the CDC the H1N1 flu virus attacks young children and young adults. This means many employees will either contract the H1N1 virus themselves or have a child that contracts the virus. The CDC is recommending that those that contract the virus stay home and away from the public for at least 24 hours after their fever is gone.

For employees with sick leave or paid-time-off (PTO), staying home to take care of a sick child or themselves does not present a problem. But there are employees who either have no available time off or have exhausted all their available time off. What can or should an employer do in that case? 

Employers are under no obligation to provide those infected with the H1N1 virus any additional time off. Providing sick leave or PTO is not required, at this time, under any Iowa or federal law. There have been no requirements from Iowa or the federal government mandating that employers allow persons infected with the H1N1 virus time off from work (either paid or unpaid). However, persons infected with the virus may potentially spread it to others, thus resulting in a “pandemic” in your workplace. It may be possible for you to adopt policies which allow sick workers to stay at home. Examples of such policies include granting more PTO; allowing sick workers to “borrow” time from a future allotment; allow employees to work from home.

 

Even if none of the above options are appropriate for your work site, it is still important to stress preventative health options to your workers—washing hands, using antibacterial hand gels etc.

President Obama Encourages Unemployment Compensation Changes

Today President Obama announced a plan that will encourage unemployed workers to enroll in educational and retraining programs.  The President's plan encourages states to update their unemployment compensation rules so that unemployed workers taking advantage of the program do not lose their unemployment compensation benefits.  Iowa's current unemployment compensation scheme has such a speed-bump.

Under Iowa Code § 96.4 an unemployed individual is eligible for unemployment compensation benefits if the individual is "able to work, is available for work, and is earnestly and actively seeking work."  The Iowa Administrative Code state that full-time students "devoting the major portion of their time and effort to their studies are not "available" for work as required by the Iowa Code unless they are "available to the same degree and to the same extent as they accrued wage credits."  Thus, they are ineligible to receive unemployment benefits.  Exceptions include an indivdual in training with the approval of the director and training approved under 19 U.S.C. § 2296(a), the Trade Act of 1974, Relief from Injury Caused by Import Competition.

President Obama's plan only "strongly encourages" states to alter ther current rules.  With Iowa's unemployment rate still approximately 3.3% below the national rate, (according to March 2009 rates) I don't anticipate many changes in Iowa's rules in the near future.

COBRA Changes in the Stimulus Package

The American Recovery and Reinvestment Act of 2009, otherwise known as the stimulus package, will be signed today by President Barack Obama.  The stimulus package creates many changes that employers should become aware of.  One significant change, however, is COBRA coverage and notices.  The Ohio Employer’s Law Blog sets forth the changes made by the stimulus package to COBRA.  The changes will require employers to amend their current COBRA notices and to re-notify employees terminated between September 1, 2008 and February 17, 2009.

Protect Your Employees' Status During A Furlough

In the wake of tough economic times, many companies are exploring alternative cost cutting methods.  One method is requiring employee furloughs.  Employers are using required furloughs rather than terminations as a cost-cutting measure.  If you are thinking about using a furlough at your company remember the following rules regarding non-exempt and exempt employees:

 

·         Non-exempt employees must be paid only for actual hours worked.  An employer may send non-exempt employees home as a cost-cutting measure without worrying much about the legal problems.  You will need to review any contracts, including collective bargaining agreements, your company may have with non-exempt employees before implementing a furlough to ensure that you are not violating any of the provisions contained within the agreement.

 

·         Exempt employees must receive full salary for any week in which work is performed, without regard to the number of days or hours worked.  If any exempt employee does not receive full salary for every workweek in which the employee performs any work, exempt status is lost and the employee is entitled to overtime pay.  In general, furloughs for exempt employees should be scheduled in full workweek increments to protect an employee’s exempt status.

 

These should be considered general rules.  If you have specific questions about implementing a furlough plan please contact your attorney.

A Modern Case of Involutary Servitude

The Thirteenth Amendment, which prohibits slavery and involuntary servitude except in certain circumstances, is rarely implicated in the modern employment law world.  So I was very interested when I read about Vinluan v. Doyle, --- N.Y.S.2d ---, 2009 WL 93065 (Jan. 13, 2009), a case out of New York, was decided under the Thirteenth Amendment. 

Ten nurses from the Philippines were hired to work in nursing homes caring for chronically ill children dependent on ventilators.  They each signed employment contracts which promised free travel to the U.S., two months of free housing and medical coverage, training and assistance in obtaining legal residency and nursing licenses.  In exchange, the nurses made a three-year commitment to the nursing home.  Soon after their arrival the nurses began complaining that the terms of the contact had been breached.  Nursing licenses had not been obtained.  The housing provided was inadequate—one bathroom, inadequate heat, no telephone service.  Nurses had not been fully compensated for all hours worked.  The nurses found attorney Felix Vinluan and met with him to discuss their options.  He advised them that under the New York Education Law they could not leave their positions during a shift when they were on duty, but had a right to resign after their shifts had ended.  The nurses resigned the following day either at the end of their shift or in advance of their shift.  They all used an identical form letter they agreed upon together.  No patient was deprived of nursing care services.

 

In response to the mass resignation, the employer sued the nurses and attorney Vinluan and filed a complaint with the New York State Education Department.  The nurses and Vinluan were also criminally charged with conspiracy to commit endangerment of a child and a physically disabled person.  It was the criminal charges against the nurses and Vinluan that implicated the Thirteenth Amendment.  The nurses contended that subjecting them to criminal sanctions for their act of resigning effectively compels them to remain at their jobs in violation of the Thirteenth Amendment.  The nursing home contended that the resignations created an imminent threat to the well-being of the children and fell within the “exceptional circumstances” exception to the Thirteenth Amendment.  The court disagreed with the nursing home and prohibited the prosecutor from pursing the criminal charges.  The nurses were engaged in private employment, not public service; they did not have unique or specialized skills; and there was no threat to the health of the children.  The attorney was also cleared of any wrong doing under the First Amendment.

 

Photo on Flickr by eo was taken

Lilly Ledbetter Fair Pay Act

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.

WARN

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.

Help! I Need a Reasonable Accommodation!

 

 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.

 

Labor & Employment Bills in the Iowa Legislature

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:

SF 7

A bill for an act relating to notice of public disclosure of certain workers' compensation information.

SF 24

A bill for an act providing for the licensure of elevator contractors and elevator mechanics and providing penalties.

SSB 1051

A study bill for an act pertaining to the duties and regulations under the purview of the labor commissioner.

SSB 1052

A study bill for an act relating to unemployment insurance benefits and compliance with federal law regarding and in order to qualify for funding, and including effective and applicability dates.

SSB 1053

A study bill for an act relating to an increase in the balance of the unemployment compensation reserve fund and the purposes for which the fund's interest may be used.

SSB 1054

A study bill for an act providing training program extension benefits to unemployment insurance benefits, and including an applicability date.

SSB 1055

A study bill for an act requiring employers to provide notice of plant closings and mass layoffs and providing penalties.

SSB 1071

A study bill for an act relating to the duties of the labor commissioner pursuant to wage payment collection and child labor law enforcement, making an appropriation, and providing penalties.

House Labor Committee:

HF 10

A bill for an act relating to employees who are breast-feeding.

HF 11

A bill for an act to increase the state minimum hourly wage by the same percentage as the increase in federal social security benefits.

HF 24

A bill for an act requiring employers to provide employees with meal periods and rest periods and providing penalties.

HSB 61

A study bill pertaining to the duties and regulations under the purview of the labor commissioner.

HSB 62

A study bill for requiring employers to provide notice of plant closings and mass layoffs and providing penalties.

HSB 63

A study bill relating to the duties of the labor commissioner pursuant to wage payment collection and child labor law enforcement, making an appropriation, and providing penalties.

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

Compliance with Employee Related Statutes

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

Bullies in the Workplace

When does bullying behavior in the workplace rise to an actionable level? This question was considered by the Iowa Court of Appeals in Wilson v. Cintas Corp No. 2 released Wednesday, December 17, 2008.

The facts indicate that Wilson was daily subjected to a “constant barrage of personal attacks, insults, and vile profanity” by his co-worker Mills. (The conduct occurred for approximately 5-10 minutes each day). The specific insults are too vulgar to repeat, but can be found in the opinion. It was also brought out that both employees were involved in the insults and profanity. Wilson did report the conduct to his supervisors. Apparently the employer took some action because Mills was terminated in December because he had four occurrences of shouting inappropriate language and not maintaining a level of professionalism. Later Wilson terminated his employment for reasons unrelated to Mills’ conduct.

 

The opinion tells us that “outrageous conduct” is the standard for maintaining an action against a co-worker for this type of conduct. Outrageous conduct “is so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  It should extract an exclamation of outrage from and instill resentment in the average member of the community. Mills’ behavior was considered “inconsiderate, unkind, and offensive” but was not outrageous conduct according to the court.

 

The court contrasted Mills’ behavior with the behavior of a supervisor in Blong v. Snyder, 361 N.W.2d 312 (Iowa Ct. App. 1984). In that case a discharged employee who was reinstated after filing a grievance was falsely “accused of stealing, wasting time, intentionally breaking his machine, intentionally producing inferior parts, violating fifteen company rules, playing with himself in the restroom, given extra work without receiving the proper tools to do the job and was then berated, threatened, and disciplined for his inability to properly complete the task.”

It’s apparent from the comparison between these two cases that the court will not get involved in personality conflicts but will step in when offensive conduct rises to a level that is unconscionable.

New FMLA Regulations

New FMLA Regulations have been published and will become effective January 16, 2009.  Daniel Schwartz of the Connecticut Employment Law Blog identifies things employers need to be aware of.  I encourage you to read his article which is the first of a series outlining what changes employers need to make or be aware of by January 16 2009.

Iowa Wage Payment Collection Act

 

The Iowa Wage Payment Collection Act protects employees from employers who fail to pay wages owed to an employee. Wages, as defined in the act, can encompass more than just compensation owed for labor or services. It can also include vacation, holiday, sick leave, and severance payments which are due an employee under an agreement or policy of the employer, benefit payments under an agreement or policy of the employer, and expenses incurred and recoverable under a health benefit plan. The key is whether an agreement or policy providing for payment of these items exists. In most instances the agreement or policy will be contained in an employee handbook. It can, however, take the form of an unwritten policy.

 

An employer is required to pay all wages earned no later than the next payday for the pay period in which the wages were earned. Employees paid on a commission basis, however, may have to wait up to thirty days from the date of termination to get their final paycheck.

 

An employee who has a claim against an employer for wages may bring an action in an Iowa district court or, if the claim is less than $5,000.00, through the Iowa Department of Labor. A claim form for the Iowa Department of Labor can be found here and the steps the Department follows can be found here.  Claims for wages must be brought within two years after the wages were earned.

 

Photo on flickr by jenn_jenn.

 

Unemployment Benefits for Iowans

An article in the Des Moines Register today reported that the percentage of unemployed Iowans fell to 4.2% in September. This is down 0.3% from August and up 0.4% from a year ago. The national unemployment rate is 6.1%. While Iowans seem to be better off than the rest of the country, Iowans in the 4.2% may be asking themselves “now what?”

 

If you are in the 4.2% of the population file an unemployment claim with Iowa Workforce Development. You may file a claim online or in person at your local IWD Center. The IWD has an informative guide which explains general questions about unemployment benefits. Benefit amounts depend on the amount of gross wages and the number of dependents you have. The maximum weekly benefit one can receive ranges from $361.00-$443.00.

 

To be eligible for benefits you must have lost your job through no fault of your own. In general, this means you must not have been discharged for misconduct. Misconduct is a defined term under the Iowa Administrative Code and is a source of a volume of case law.

During your benefits period you need to continually seek new employment. IWD will require you to submit a certain number of applications per week to employers. There are some exceptions, however, in most cases you will need to be actively seeking a new position. If you fail to seek new employment your benefits may cease. Your benefits may also cease if you fail to accept an offer of employment for a suitable position.

 

Unemployment benefits may not put you in a new position, but do provide some relief while finding a new position.

Celebrate Labor Day!

Labor Day, summer's last hurrah, is just around the corner (It's Monday, for those of you who don't highlight every holiday on your calendar). The original purpose of Labor Day was to celebrate the working (wo)man (154.5 million people now) and also to discuss working conditions and improvements that could be made. Most celebrations included rallies, demonstrations, and speeches from labor representatives. Today, Labor Day has become more of a family celebration with little thought about our working conditions. Is it because we have it so good? You decide--below are some facts and statistics about current working conditions taken from the U.S. Census Bureau regarding labor:

·         82% of full-time workers are covered by health insurance

·         77% of workers receive paid holidays

·         15% of workers have access to employer assistance for child care

·         12% of workers have access to long-term care insurance

·         46% of workers have access to dental care

·         29% of workers have access to vision care

·         64% of workers have access to outpatient prescription drug care

·         The median earnings of male full-time, year-round workers is $42,261.00

·         The median earnings of female full-time, year-round workers is $32,515.00

·         28% of workers work more than 40 hours per week

·         8% of workers work more than 60 hours per week

This year, enjoy your Labor Day celebration, but take some time to think about your working conditions and to pat yourself on the back for another good year.

 

Be Careful What You Say

Beside the fact that discriminating against prospective employees could land your company in litigation hot water, it may come back to bite you later on. Most people have heard of Roe v. Wade but haven't heard of Sarah Weddington, the attorney representing the woman seeking an abortion in Roe v. Wade. According to an ABA article, Weddington may not have had that opportunity had she been given a fair chance at a Dallas law firm. During the interview process, the law firm questioned her ability to work the long hours and still make it home to cook dinner. They were also concerned that they couldn't cuss her out as much as male associates. She didn't get the position, but she didn't file a lawsuit. Years later, when she was advising President Jimmy Carter on women's issues and judicial appointments, a senior partner in that same Dallas law firm wanted to be a federal judge. He didn't get the position.

So you want to start your own business . . .

You've been working at ABC Co. for some time now. You have gained experience and knowledge during your employment, but you've caught the entrepreneurial bug. You want to start your own business. During your employment you have developed solid relationships with ABC Co. clients. You're positive these clients would follow you if you left ABC Co.  Before you do anything ask yourself the following questions:

1.      Did you sign a non-compete with ABC Co.? Reasonable non-compete agreements are enforceable in Iowa. If you signed a non-compete agreement before or during your employment with ABC Co., it may be enforceable and you will want to abide by the terms of the agreement. If you have questions about the agreement, contact your attorney.

2.      Do you still work for ABC Co.? If you are currently employed with ABC Co. fight the urge to solicit ABC Co. clients and/or employees. According to Iowa law employees have a duty of loyalty to their employers. Soliciting clients and/or other employees while employed violates that duty. Even an innocent conversation with a client: "Hey, I'm thinking about starting my own business, what do you think?" may be considered solicitation. It may be difficult to not ask because clients are important to the success of your new venture. But don't do it.

3.      Are you cleaning out your old office/workspace? If you have terminated  your employment (or are just about to) and are in the process of cleaning out your workspace, including your computer refrain from taking with you ABC Co. information or materials that may be unique to ABC Co.. This information or material might be considered confidential or a trade secret. Leave it there.

4.      Have you terminated your employment with ABC Co.? Once your employment relationship with ABC Co. has been terminated you are free to compete  with ABC Co.(as long as there is no agreement otherwise). You are entitled to use general information concerning the business, including the names of clients retained in your memory. Good luck.

photo on flickr by bludgeone86

Wal-Mart Takes Another Hit

It's been said before: Wage and hour claims are the newest trend in the employment law area. Recently Wal-Mart got hit with a $6.5 million judgment for violating Minnesota wage and hour laws. The judgment could increase to $2 billion depending on the penalties imposed. Apparently Wal-Mart required employees to work off the clock and denied rest and meal breaks to employees. The 151 page opinion can be found here.

What can you do to prevent a wage and hour claim? Start by classifying your employees correctly. Employees are either exempt or non-exempt. The most common types of exempt employees are executive, administrative and professional. Non-exempt employees must be paid overtime.

Keep accurate records of the hours worked by non-exempt employees. Using punch-in and punch-out clocks may be the most accurate, but at the very least have employees write their hours on a time sheet for each pay period. Iowa law requires employers to keep these records for three years.

Make policies clear to employees and managers. If breaks are given to employees, make it clear to employees that they should or must take the breaks. Make sure managers understand this as well. It seems Wal-Mart's policy was to give workers meal and rest breaks, however, managers either directly or indirectly required employees to work during meal and rest breaks with no pay.

For more information on the wage and hour law check out the DOL website

Liability for Non-Employee Sexual Harassment?

It should be obvious to all employers that sexual harassment in the workplace is prohibited. Most employers also understand their obligation to discipline employees who engage in harassing behavior in the workplace. But what about the non-employee harasser? Many companies are not self-sustaining—they rely on customers, vendors, outside sales persons and other non-employees to drive their business. You, as the employer, cannot control their actions. Even so, do you have the responsibility to protect your employees? 

Possibly. The federal regulations suggest that in some limited circumstances employers may be liable for sexual harassment by a customer. If the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action an employer may be liable for the non-employee’s actions. Once an employer knows or should have known of the harassment, it has an obligation to take all reasonable steps to protect its employee.

As always, have a policy in place which prohibits discrimination by non-employees. Make supervisors aware that the company has a responsibility to protect its employees from harassment by non-employees. Take prompt action to investigate an employee’s complaints. Discuss with the employee the findings of the investigation and steps to prevent the harassment from continuing.

 

Photo on flickr by DOS82

Time To File Civil Rights Complaint Lengthened

Starting July 1, 2008 a person who wants to file a civil rights complaint under Iowa law will have 300 Days. The previous filing deadline was 180 days. This change conforms to the federal deferral time-line of 300 days. There is an exception for persons covered by Section 614.8 of the Iowa Code, the mentally ill and minors. This change will result in a change the Iowa poster which may, but is not required to, be hung in the workplace. The revised recommended poster can be accessed on the Iowa Civil Rights Commission website.

Employers are required to hang the federal EEOC poster.

Retaliation

I recently attended an employment law seminar in St. Paul, Minnesota. One key topic that kept resurfacing in the sessions I attended was RETALIATION. Title VII retaliation claims have increased 19% from 2006

An employer retaliates when it makes an adverse employment decision which tends to discourage an employee from engaging in protected conduct. What is an adverse employment decision? Although not clearly defined, the Supreme Court has made it clear that it is not necessarily have to be a tangible employment decision, such as termination. What is protected conduct? Whistleblowing, filing a complaint, taking FMLA leave or making a worker’s compensation claim are all examples of protected conduct.

What should employers do to minimize retaliation claims?

  • Have a clear policy prohibiting retaliation;
  • Educate managers and supervisors about retaliation;
  • Enforce policies consistently for all;
  • Refrain from making hasty decisions when employees have engaged in protected activity in the recent past even if you believe the decision is warranted;
  • Investigate all retaliation claims and discipline those who have engaged in retaliation. Inform the employee alleging retaliation of your findings and whether any disciplinary action will take place;

Guns in the Workplace

Florida Governor Charlie Crist signed a controversial fire arms bill today.  On the anniversary of the Virginia Tech shootings and in light of increased violence in schools and the workplace, increased laws controlling guns might be expected. However, the new Florida legislation allows employees to keep legally owned guns locked in their car during work hours so long as the employee has a permit to carry a concealed weapon. The new law is getting mixed reviews.  Employers are understandably upset as they are prohibited from promulgating policies concerning guns on their property.  Proponets believe it is a constitutional right of all citizens.

Currently Iowa employers are still allowed to set forth their own policies concerning guns in the workplace and on company property.

"You're Fired"

We all know that sometimes HOW you say something is more important that WHAT you say or WHY you say it. This is especially true when it comes to terminating employees. In “Halloween” from Season 2 of The Office, Michael Scott provides one way to go about terminating an employee. (You can purchase this episode at iTunes or Amazon). However, I would suggest reading today’s posting on the Pennsylvania Employment Law Blog for excellent tips to use if you have to terminate an employee. It stresses the importance of focusing on HOW you terminate an employee rather than WHY you are terminating an employee. Focusing on the HOW may reduce the blow of WHAT you are saying.

Correct Mistakes in Employee Benefits Plans

Employee retirement plans, including 401(k)s and pensions plans, are benefits offered by many businesses.  It's important if your business offers such a benefit that the plan comply with all the laws governing the plan.  However, mistakes can be made, therefore the IRS has published a 401(k) fix-it guide.  Although named a 401(k) fix-it guide, many of the corrections are applicable to other types of employee benefit plans.  The guide lists the eleven most common mistakes made by businesses and then offers tips on finding the mistake, fixing the mistake, and avoiding the mistake in the future.  Most errors can be self-corrected.  If you have questions consult with your plan administrator or attorney.

FMLA Has A New Look

The Family Medical Leave Act (FMLA), enacted in 1993, was amended January 28, 2008.  Prior to the amendment eligible employees were able to take up to 12 workweeks of unpaid leave in four circumstances. The amendment expands the FMLA to include leave related to family members of military service people. Read President Signs FMLA Expansion for Military Families for a synopsis of the amended law. As the article points out the expansion will obviously create more questions surrounding the FMLA.  Hopefully, the amended law helps military families rather than burdens them with additional hoops to jump.  I would urge all employers and employees affected by the amendment to educate themselves about the changes. Also, as an employer, remember to notify employees about the changes.

Responding to Reference Requests

When an employee-employer relationship is terminated, either amicably or not, employers may be asked to provide a reference for the former employee.  Providing both positive and negative references for former employees may result in legal liability for employers.  Negative references may result in a slander or defamation action by the former employee.  False positive references or partial references may result in an action by the new employer against the former employer. 

The fear of litigation has resulted in many employers enacting a blanket policy prohibiting supervisors/managers from providing any references for any employees.  Those employers will only verify the person’s position, salary, and job duties but will not provide an assessment of that person.

Business owners will have to decide what works best for their business.  If you choose to provide references or answer inquiries, remember the Iowa Code has enacted parameters as well as protection from liability for employers: 

·        Before providing a reference a request must be made by the former employee or the prospective employer; 

·        If the former employee was discharged, a statement indicating the reasons for the discharge must be in writing; 

·        Information provided does not violate a former employee’s civil rights;

·        Employer provides information to a person with a legitimate request;

·        Employer provides information that is relevant to the inquiry;

·        Employer does not provide information with malice; and

·        Employer has a good faith belief that the information is true.

To ensure that your business follows the parameters enacted by the Iowa Code and is protected from liability get everything in writing (the request and your response); answer only the questions asked; and always be honest. When in doubt either don’t provide the reference or contact your attorney.

Maintaining a Temporary Worker's Status as Temporary

The Question of the Week posted this week got me thinking about the classification of temporary employees. Temporary workers are workers that are employed by a staffing agency which supplies workers to the client company. Temporary workers report to the client, but receive pay and benefits from the staffing agency. Temporary workers, therefore, are considered to be the employee of the staffing agency rather than the client company.

The risk of having a temp become an employee of the client company arises when the client company retains a certain amount of control over the temp. If that happens, the client company may face liability for a wide variety of employment related issues including discrimination and wage and hour violations.

How can the client company reduce the risk of having a temp become classified as an employee? The suggestions listed below are taken from “Get Smart When Using Temporary Employees” and a 2004 Iowa case, Willms v. Associated Materials Inc.

  • Allow the staffing agency to communicate the rate of pay and hours to the temp;
  • Require the staffing agency to perform drug testing or background checks;
  • Request the staffing agency perform periodic visits to the job site;
  • Differentiate the temp uniforms, badges, parking spaces, break rooms, etc. from the permanent employees’;
  • Allow the staffing agency to make hiring and firing decisions as well as take disciplinary action;
  • Limit the time period a temp works at the site;
  • Refer to the temp as a worker who is assigned rather than an employee who is hired;
  • Always have your attorney review your agreement with the agency.

In short, treat temporary employees different than your permanent employees. A client company may not be able to completely eliminate the risks of having temporary workers classified as employees, but by using some of the suggestions above the risk will be reduced.

Photo on flickr by DCvision2006

Tip #27: Enforce policies consistently

An article in the Des Moines Register affirms my advice in a past blog: Have an internet, e-mail, and/or computer policy AND enforce the policy consistently. Michael Hopewell has been terminated from IPERS for circulating an indecent email. Hopewell, believing his termination was improper, has brought an action against the agency for unemployment benefits. IPERS claims the email joke violated its computer policy. I would imagine the nudity in the email did violate IPERS’ computer policy.  However, just from reading the article, I can presume Hopewell’s argument will be: Jokes and emails like this (maybe even worse) have been forwarded around this agency hundreds of times and nobody has ever been fired before. Based on the article, it seems that IPERS has, at least in some manner, enforced the policy in the past. It’s not clear what the outcome will be in this situation, but it is clear that having a computer policy and enforcing that policy consistently is a good business practice. 

Fitness in the Workplace

“Forced to be Fit,” which some may have caught on the CBS Evening News last night, tells the story of the Benton County, Arkansas’ fight against fat. This isn’t your traditional fight against fat e.g. America’s Biggest Loser or Lighten Up Iowa. In this story the pressure to lose weight comes from the employer. Research shows that obese employees cost employers more in health insurance and worker’s compensation. Some employers are transferring this extra cost to the employee, while others are providing incentives to the employees for losing weight. Others have only gone so far as to provide fitness facilities to encourage weight loss.

It's clear that this issue will become more prevalent in the future.  Currently, obesity itself is not a protected class.  However, in certain limited circumstances, it may be considered a disability under the American with Disability Act.  Therefore, it's important to tred carefully when dealing with employees that are considered obese.

Photo on flickr by fanboy30

Internet Usage

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*

At-Will Employment

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. 

Job Descriptions for Small Businesses

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.