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

This post should be prefaced with the fact that I am an alumnus of the Univeristy of Iowa, but I will attempt to remain as objective as possible in my reporting.

Iowa State University recently finialized its contract with new Head Football coach Paul Rhoads.  The contract, linked here by the Des Moines Register, has an interesting term that is not often found in coaching contracts.  Under Article V of the contract, instances are provided that equate to "just cause" for termination, in other words, reasons the University can give to fire him.  Paragraph 2(a) of this Article specifically lists some situations that cannot be considered just cause, including:

ii) Win-loss record or public unhappiness with win-loss record; or

iii) Other general displeasure at the direction or success of the football program.

Generally, win-loss records and displeasure with the direction of an athletic program are the main reasons coaches are fired by their university employers.  It would be interesting to know at whose behest these clauses were added, and the policy behind them.  It should be noted that the contract also lists a number of "just cause" reasons to fire Rhoads, and the University would likely be able to find separate reasoning to release him besides the win-loss record of the team. 

At any rate, his job is safe for a while, even after September 12, 2009.  Go Hawks.

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

Senate Labor & Business Relations Committee:

House Labor Committee:

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

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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.

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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.

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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.

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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.

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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

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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;

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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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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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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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