Iowa Lawyer & Attorney : Sullivan & Ward Law Firm : Iowa Law Blog

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.

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Based on the premise of worker protection, the Iowa House and Iowa Senate worked out a compromise and have passed a smoking ban for most public locations.  The bill will be signed by Governor Culver and will go in effect July 1, 2008.  Gambling areas of casinos, outdoor areas of bars, outdoor areas of county and state fairs and a few other designated areas would still permit smoking under HF 2212

It took bipartisan support to get this bill passed, by a close margin.  The controversial exemptions created issues, as did the mere fact of the perceived intrusion into individual liberties.

I'll just enjoy going out for dinner and drinks and not smelling like an ashtray.

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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.

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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.

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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.

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Mike Sansone has compiled a list of Iowa bloggers that Drew McLellan has coined the "I List".  (Let's hope we don't see a trademark lawsuit by Apple).   And while this pair of prolific bloggers managed to overlook our relatively new Iowa law blog we hold no grudges.  We have added a few Iowa law blogs to the list originally posted by Mike.

Kudos to this partial list of the hardest working bloggers in Iowa:

Adam Carroll
Andy Drish
Art Dinkin, CFP, CLU, ChFC
Association of Business & Industry
Babich, Goldman, Cashatt & Renzo
Barry Pace
BeatCanvas

Bill Grell
Blue Frog Arts
Brett Trout
Bridges Financial
Broom Wizards
C Wenger Group
Carpe Factum
Claire Celsi
Cloud Nine Diamonds
Compass Financial Services
Conference Calls Unlimited
ConverStations
Dave Dreeszen
Des Moines Families
Dickinson, Mackaman, Tyler & Hagen
DMWebLife
Do You Q?
Dr U Fantasy Football
DSM Buzz
Dwebware
Employer Ease
Eric Peterson
Focal Point Multimedia

 George Davison
Gift Idea Help
Home Know-it-All
Insight Advertising & Marketing
Iowa Bed & Breakfast Association
Iowa Biz
J. Erik Potter
Jann Freed

Jennifer Jaskolka-Brown
Josh More
Kyle's Cove
Maiers Educational Services
McKee, Vorhees & Sease
McLellan Marketing Group
NCMIC Insurance
Purple Wren
Radio Iowa
REL Productions
Rental Metrics
Rita Perea Consulting
Roth & Company
RSM McGladrey
Ruby's Pub
Runners' Lounge
Rush Nigut
Ryan Rossinick
Simplifive
Snap! Creative Works
Studio 24 Design

Sullivan & Ward's Iowa Law Blog
Swing Station
The Members Group
The Mitchell Group
The Simple Dollar

 The Yin Blog
Transition Capital Management
US Rodeo Supply
Victoria Herring
Wade Den Hartog
Wealth With Mortgage
When Words Matter
White Rabbit Group

Happy New Year everyone!  If you know of an Iowa blog that should be added to this list please let us know.

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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.

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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

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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. 

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“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

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

Photo on flickr by *diggin an old dude*

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

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

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

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

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The Des Moines Business Record reports that lawsuits are down for U.S. businesses.  The report is based upon a survey by the law firm of Fulbright and Jaworski, LLP.  Fulbright surveys 250 in-house counsel from major corporations.  But don't get too excited about the reduction in case filings.  One-third of the corporations surveyed face at least 25 lawsuits and 18 percent are juggling at least 100 actions in U.S. courts.  Fulbright says,

The sheer economic stakes of litigation remain daunting.  Forty percent of U.S. companies say they were hit with at least one suit in the past year with more than $20 million at issue.  Among billion-dollar businesses, 62% were served with at least one $20 million lawsuit.

The study also concludes that patent and product liability cases are on the rise.  For most smaller businesses, it is my experience the threat of an employment lawsuit is far greater than just about any other cause of action.  In particular wage and hour litigation is on the rise.  No surprise the Fulbright study shows employment and labor lawsuits are the most common cause of action facing large corporations as well.

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Iowa's own Casey Blake had a monster game for the Cleveland Indians last night with a home run and RBI single.  Indians are now up 3-1on the Red Sox and look to clinch the pennant this Thursday.  HR Capitalist has a fun and interesting post noting the difference in the payroll between the Indians and the Red Sox (and the Yankees).  

It kind of reminds me of the principles in Good to Great by Jim Collins.  It is a reminder that the highest price talent does not always mean your organization will come out on top. 

photo on flickr by runnx. 

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

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

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

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

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Small Business Owners - Beware!  If you own or manage a small business you live in a world of substantial legal risks and increasing complexity.  It is easy to find examples of practices that once have been common but now could give rise to employment lawsuits.  One such example I often hear is "I'll just call my workers independent contractors and avoid the hassles of employees."

Many businesses make the mistake of treating employees as an independent contractors so they can save money on taxes, red tape and benefit coverage.  The risks associated with this approach is often not worth it.

Businesses that misclassify workers often find themselves embroiled in wage and hour lawsuits or workforce development audits.  These businesses could also face tax penalities and lack of insurance coverage in key liability situations.

Often, businesses treat employees as independent contractors because they fail to fully understand the distinction between the two categories.  The most important difference is whether or not you have the right to control the work.  Other factors, such as where the work is performed, who provides the equipment, how payment is made and if there are set hours, also play an important role.

Generally, an employee is someone whose manner of work the employer has a right to control, even if the employer does not actually exercise that control.  True employees are sometimes known as W-2 employees because of the W-2 form issued to them for federal income tax purposes. 

On the other hand, an independent contractor is someone you engage to perform a certain task, but whose manner of work you do not have the right to control.  You have the right to tell your independent contractor what it is you want done, and you remain free to dismiss them if you do not like the work (depending on your contractual arrangement).  Ultimately though it is the results you are interested in.  The manner in which the results are accomplished is up to the independent contractor and is not subject to your control.  An independent contractor is given a 1099 form to report income for federal tax purposes.

If you have questions about whether to treat workers as employees or independent contractors be sure to consult with an employment or tax lawyer.  This area of the law is more complicated than just the control issue.  Tax lawyer Tripp Atkins is currently analyzing the 20-factor IRS test for determining an employee or independent contractor on his blog.

The safest course is to treat workers as employees if the workers' status as an independent contractor could reasonably be questioned.   

Photo on Flickr by Partsnpieces.   

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