Iowa Lawyer

When At-Will Employment is NOT At-Will

2010-09-10T12:48:00.002-05:00

It is important for supervisors and managers to keep in mind that, in some circumstances, the law may require a strict procedure to follow in the termination of an employee and the failure to comply with any step may lead to costly consequences. In the Public and Safety Labor News journal, July 2010 edition, an article written by Will Aitchison titled “Employer Has Burden Of Proving Disciplinary Notice To Employee” illustrates that the significant consequences imposed on the Pineville, Louisiana Fire Department when it did not provide an employee with a written statement regarding his termination.

On July 23, 2003, firefighter Stephan Jones was involved in an accident while driving a fire rig. Pursuant to Pineville’s substance abuse policy, Jones was taken to a clinic to provide a urine sample for drug testing. Jones submitted a sample that the attending nurse found to be at a temperature too high to achieve an accurate test result. When she requested him to provide her with another sample, Jones refused and left the clinic.

After Jones informed his Captain he submitted an invalid urine test, the Captain warned him he could lose his job. Once the Department learned of the matter, Jones was placed on immediate suspension without pay when he refused to resign. His failure to submit a valid sample led the Department to terminate Jones for insubordination. He appealed to the Civil Service Board. When the Board upheld his termination, Jones filed with the court system.

The Louisiana Court of Appeals reversed Jones’ termination primarily due to a statute which states: “In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefore.” Louisiana Revised Statutes 33:2500(D). Since the Mayor of Pineville failed to provide Jones a written statement regarding the reasons why he was terminated, the City was unable to prove a disciplinary action had taken place against him.

What went wrong? While the Department had grounds to terminate Jones’ employment due to his failure to produce a valid urine sample, it overlooked how essential it is to follow the rules, codes and contracts that can govern employee conduct. Thus, whenever looking to terminate or discipline an employee—supervisors need to make sure that they are aware of any relevant policies or law that would govern the discipline procedure. And, when in doubt, it is a good idea to check with a Human Resource Specialist or attorney.

This blog post was written by Katherine Hanson, Paralegal. Feel free to contact her at katherine.hanson@brickgentrylaw.com.

Sick Leave Retaliation

2010-01-10T11:23:00.000-06:00

When it comes to sick-time policies, there can be a fine line between an employer enforcing their terms in good faith and using them for purposes of retaliation or discipline. In a January 2010 Public Safety Labor News article titled “Police Department’s Sick Time Policy Violates ADA”, we learn that the Dracut Police Department in Massachusetts is one employer who crossed that line. The Massachusetts Division of Labor Relations ordered the Department to end its use of an illegal sick-time policy, which was being inappropriately administered and was found to be in violation of the Americans with Disabilities Act (ADA).

The bargaining agreement between the Town and the Union contained a policy in which officers were to call in and notify the Deputy Chief of their symptoms, and he would grant or deny the request. However, this policy was only to be used when it was believed the officers were abusing the sick-time policy or if the sick time exceeded four days. A female officer, who used three days of sick time, refused to provide the requested information, as she felt it violated her medical privacy. The Deputy Chief then wrote to the officer, voicing a concern that she may pose a safety risk to the citizens of the town, and demanding that she comply with a variety of tests and random drug screening. The interesting part of this is that she was expected to report to work during the tests.

The Union argued that the actions of the Town were retaliatory and disciplinary, and that the Deputy Chief’s demands for information were in violation of the ADA. The Town’s defense was that these practices were necessary to monitor the usage of sick time and to conduct business. An arbitrator found that the policy did in fact violate the ADA, as it did not measure fitness for duty, especially considering the department allowed her to work during the testing period. The arbitrator found that the Deputy Chief’s actions were not made in a good-faith belief that the sick-time policy was being abused, but that he was retaliating against her for refusing to comply with his request.

It is always best to consult with a legal counsel to ensure the policies in your bargaining agreement are being appropriately administered. Bargaining agreements outline a variety of practices to be used in assessing the fitness for duty of its employees, or to ensure fair use of benefits. However, these practices must not be utilized at the whims of employers for what, in some cases, amounts to disciplinary actions.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at adriel.lage@brickgentrylaw.com.

Darned If You Do, Darned If You Don’t

2009-12-30T14:34:00.003-06:00

As an employer, you likely have very few easy decisions to make in regards to your employees. Many actions taken on behalf of employees can bring unexpected and negative results – regardless of your intentions. In the November 2009 issue of The Nebraska Lawyer, there is an eye-opening article title "Discrimination and the 'Strong Basis in Evidence Standard' written by Julie A. Schultz that tells us just how careful employers must be when taking actions based on anticipated discrimination claims.

In 2003, The New Haven, Connecticut fire department conducted promotional exams for the purpose of promoting firefighters. The results showed a significant disparity between the scores of the Caucasian employees and the scores of African American and Hispanic employees. If the City used the scores, along with their promotion standards, the promoted individuals would have been almost entirely Caucasian.

Although the examination had been created by a neutral third party, and was deemed necessary for business, the City believed that using the results to promote firefighters would result in disparate impact claims from the African American and Hispanic employees who were not eligible for promotion. The City chose not to certify the results of the examinations, and did not award any promotions. Here’s where the “darned if you don’t” part comes in.

Despite the City’s best efforts to avoid discriminatory actions, they were sued by the group of individuals who were eligible for promotion based on the exam scores. In Ricci v. DeStefano, the court found in favor of the firefighters. The City was unable to prove that they would be subject to disparate impact liability, and that there was a “strong basis of evidence of an equally valid, less discriminatory testing that the City refused to adopt.”

So what is an employer to do? One may look at a situation like the City of New Haven’s and conclude that the only real “choice” is which kind of lawsuit they want to defend. Words of wisdom: tread lightly, especially when making race-based decisions. If you believe you may be subject to any kind of liability, it is best to seek the legal advice necessary to make an informed decision.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at adriel.lage@brickgentrylaw.com.

ADAA Presentation

2009-09-24T08:35:00.002-05:00

As is typical lately, I must again apologize for the length of time between posts. I spent two weeks recently in the Bridger/Teton National Wilderness without any phone/email access, which accounts for much of my delinquency this month. In addition, I have been preparing recently for a presentation on Friday, September 25th to the Iowa League of Cities.

In case anyone is interested, I have attached a link to the presentation below. And, I promise that regular updates will begin again next week.

http://dl.getdropbox.com/u/918952/New%20Requirements%20of%20the%20ADAAA.pdf

The Intersection of Employment Law and Criminal Law

2009-09-02T06:52:00.003-05:00

I must concede that my blog postings have been rather sparse of late, but I am reprinting a September 1, 2009 article by Michael Cooley of KSIB Radio in Creston, Iowa that should explain what I have been up to. For more articles by Mr. Cooley or more information on the story below, visit http://www.ksibradio.com/

Chairman King Not Guilty

Union County Board of Supervisors Chair Mike King has been found not guilty in a disorderly conduct trial that finished today. King was charged by the Creston Police Department with disorderly conduct after officials allege a confrontation between King and Union County's Chief Jail Administrator Dave Danielson escalated to a point that charges were necessary. After about an hour of deliberation this afternoon, the jury returned with the “not guilty” verdict at about 2:55pm. King says he was glad to hear outcome.

“I'm very pleased. This is the thing that I've tried to tell the public,” King tells Creston Radio News. “I knew that when my day in court came through that, most people know me, I try to be respectful to the public. They're my customers. I try to be professional, and I work for the public.”

According to King, he won't let the trial get in the way of his job as an elected official.

“My focus right now is to do my job that I was elected, as usual, for the public, to work as hard as I can to try to help bring grant money in these times,” says King, “in the economic stress, to try to improve these roads and try to help all of Union County, period.”

Although the city of Creston is who brought the case against King, he says that he hopes those differences can now be put aside.

“It's time for this county and the city and all the towns in Union County to work together to make this a better community in these times of economic stress,” according to King. “We can make our county shine and work together as a team, and not pull apart and be divisive.”

On the other side of the table, city attorney Skip Kenyon told Creston Radio News that he felt the trial was a fair one. He said all the evidence was presented fairly and the jury did what they needed to.

Court reconvened after lunch this afternoon at 1:15pm where Kenyon was given the chance for rebuttal testimony on behalf of the prosecution. He had none, which sent the trial to final motions and jury instructions. That meant the jury was released for court business, which saw defense attorney Douglas Fulton again move for dismissal of the case with an immediate acquittal of King. Kenyon again voiced his resistance to the move. And again, Judge Monty Franklin denied the motion.

In jury instructions, defense attorney Matt Brick tried adding an instruction, but that also was denied by Franklin, who cited the fact that the instructions involved “items outside of the trial.” With no further objections or additions, the jury was brought back in to hear Franklin read them the instructions before closing statements. The instructions directed the jury that all elements of the city's code needed to be present to find King guilty in the case, including the acts of being loud and raucous, as well as causing unreasonable stress to the occupants of the building.

The media, was not allowed to record the session, but we do have the summary of today. In closing statements, Kenyon started on behalf of the defense. He told the jury that he had presented them several people who witnessed the incident in question and were distressed by King's actions that day, citing that two employees even made notes about it.

Brick's closing statements, meanwhile, tried to poke holes in the testimony of the prosecution's witnesses. Brick told the jury that the testimony of Pam Conley on Monday afternoon didn't seem to match up with that of any other witness in the trial. He also said the defense presented stronger testimony, citing King and courthouse patron Susan Willett.

Kenyon was then given one last chance to respond to the defense's statements, to which he told the jury to remember that the testimony of the witnesses on behalf of the prosecution was difficult because of their requirement to work with King on a daily basis. He also told the jury he believed the only testimony that didn't match with the rest, wasn't that of Conley's but that of King himself.

Before the defense rested its case at 11:45am this morning, and the court recessed for lunch, King took the stand as the defense's last witness. For the first time in the trial, the jury heard firsthand testimony of the discussion between the two individuals. Kenyon chose not to call Danielson during his chance to bring in witnesses.

King told the jury that he's been on the Board of Supervisors for the last 19 years, twelve of which he's been in the position of chair. In testimony tangled in objections and offers of proof from the defense, King was able to tell the jury what happened from his perspective on April 13th. Testimony from both sides has established that Danielson felt he should be allowed to attend a meeting of county officials regarding the county's insurance program. King said the reasoning came from a letter the board received from current Sheriff's Office representative Dorie Schiltz, sealed with the Sheriff's Seal, that she was resigning from the committee and appointing Danielson as her replacement.

King says the letter was received by the board during their weekly meeting that morning. King told the jury that he passed the letter around and found the consensus of the board to be that Danielson would not be allowed in the board room after a past board meeting during which Danielson allegedly caused a scene and King said Sheriff Rick Piel told the board that Danielson would not be allowed back in that room.

King then testified that after the board decided to deny Danielson permission to attend the meeting, King received a phone call from county auditor Sandy Hysell that Danielson was at the office wanting to find out why the decision had been made. King said he told Hysell he'd be there to talk to Danielson. According to further questions, King stated that Danielson was no longer at the office when he arrived and asked Hysell to call to find him. King testified that he tried to be cordial but that Danielson kept asking about the same question. It was then that King says he went into the hallway to go to the board room, where the insurance meeting was being held and that Danielson stepped in front of King and told King, “Fat man, you're not going to keep me out of that meeting.” King stated that he replied, “Dave, don't go there.” King called his tone “stern” but not angry or loud. After more discussion, King alleges that he told Danielson he'd have him arrested if he tried to attend the meeting, to which King said Danielson answered, “Nobody in this courthouse will arrest me.”

King also told the jury through questioning from the defense that a pacemaker and defibrillator, as well as other health issues, meant that there was no way he could have waved his hands and yelled for twenty minutes, as the testimony of Conley suggested. Although in her testimony, Conley also denied multiple times that she touched King, King alleged that Conley used both hands to stop him and tell her how she felt about him talking to the father to her child.

Perhaps a key part of the testimony that brought the “not guilty” verdict, was the defense questioning whether King intended to be loud and raucous, to which King answered, “No.” The jury instructions would later say that the individuals must believe that King “intended” to do the actions for him to be found guilty.

King also told the courtroom that he found out about the charges against him a month later, to which he voluntarily turned himself into the Creston Police Department. In testimony only heard outside the jury, King would tell the rest of the courtroom that Ver Meer said if it were up to him, he would be filing the charges, but that “Danielson hounded Ver Meer” to go through with it. King also talked outside the jury that Danielson filed more than ten grievances against the county and said in a letter that he wanted to see King defeated in the next election. The testimony given outside the jury was the defense's attempt to let the judge decide if the information was pertinent to allow the jury to hear it. Franklin did not allow that information to be heard.

Others called by the defense included Hysell, who confirmed King's testimony that Danielson had wanted to attend the insurance committee meeting. Hysell says when she went back to her personal office to try to contact Danielson via telephone, she was put on hold, and that was apparently when the discussion between the two individuals happened. Hysell testified that she did not hear any loud noises from where she sat and that she did not see anything when she came out of the office about five to seven minutes later.

Cross-examination of Hysell by Kenyon established the close working relationship between Hysell and King. Hysell said that she is the secretary for the Board of Supervisors and that it was that body of individuals who first appointed her to the open position before elections.

Ron Riley, vice-chair of the Board of Supervisors told the jury in his testimony on behalf of the defense that he was in the back Treasurer's office talking with Kelly Busch about landfill financing when the incident must have happened. He also testified that he heard no loud noises. Cross examination by Kenyon saw Riley say that the back office is “fairly isolated.”

The brief testimony of Jack Lipovac was the next one heard by the courtroom. Lipovac is the owner of HR OneSource, who he said has spent the last 15-20 years working with Union County on union negotiations and other employment issues. Objections from Kenyon on multiple elements of the testimony kept Lipovac's statements brief and basic.

Meanwhile, courthouse patron Susan Willett, was heralded by Brick as the only witness who was not in some way affiliated with the county. Prosecution's witness Conley, who was also in the courthouse at the time of the incident, has a 30-year-old daughter with Danielson. Willett told the courtroom that she was getting her driver's license renewed next door at the treasurer's office when the incident occurred. She told Brick that she never saw Danielson, but did notice King say a brief statement. It was mostly Conley filing a complaint after the fact that caught her attention.

Municipal Elections, Patronage and Terminations

2009-08-26T06:39:00.004-05:00

As we approach another local election cycle, I want to point out that the Sept./Oct. 2008 issues of the Municipal Lawyer has an interesting article by Lawrence L. Lee titled “Avoiding Workplace Free Speech Claims in the Upcoming Election: Tips to Prevent Liability.”

The primary focus of the article is that public employees and employers need to be aware of the established legal principles of the State and Federal Constitution, as well as relevant state statutes that apply to the ability of a public employee to exercise political speech rights at work. For example, potential legal issues may arise under 42 U.S.C. 1983 for freedom of speech or association claims made under the First Amendment.

The most common issues for public employees include:

1. Can an elected official take employment action against an employee of a different party?

2. Does a public employee have a First Amendment right to express his political views or allegiances on the job?

3. To what extent can he express his political preferences?

In 1976, U.S. Supreme Court held that an elected Democratic sheriff couldn’t constitutionally replace certain Republicans within his office, stating that the cost of the practice of patronage was the unquestionable restraint it placed on the constitutionally-protected right to freedom of belief and association. And, in 1990, Supreme Court expanded to include limitations on retaliary work practices equivalent to termination (i.e., demotions, transfers, recalls). Whereas, posting political signs and intra-office election debates are generally protected under the 1st Amendment.

In cases where an employee is disciplined or terminated for political speech, a municipal employer has some defenses, which are:

A. The government can justify patronage dismissals by proving the employee is in a “policymaking position” and political affiliation is an important precondition for the position.

B. Proving the employee’s expression disrupted office functions.

C. Proving that the employer would have made the same decision even without the protected conduct.

In any event, taking action against a politically active employee in an election season can be a risky road for municipal managers. If a municipal employee feels they have been targeted because of their political beliefs or if a city wants to terminate an employee who also happens to be politically active, it is highly recommend you consult an attorney for a specific course of action.

Does the ADAAA allow employers to terminate for disability-related misconduct?

2009-08-20T09:44:00.003-05:00

An article titled “Police Employee Terminated For Misconduct, Not Alcoholism,” from the June 2009 issue of Public Safety Labor News shows how, prior to the ADAAA, a disabled employee was not allowed to use their condition as a shield to prevent discipline for inappropriate conduct. However, now that Congress has made its intent clear to broaden protected under the ADAA, we will need to wait for some appellate court cases to determine whether the changes to the law allow disabled employees to engage in misconduct with greater impunity.

The article referenced above highlights a case involving a Connecticut police office that is an alcoholic. Three times during 2004, the employee’s supervisors spoke to her about her use of sick and vacation time, expressing concern that she had used all of the time she had accrued during her nine years of employment.

In February of 2005, she was arrested for “breach of peace” for conduct while under the influence. As a result, the employee signed a Last Chance Agreement which acknowledged her years of service but also noted her “habitual absenteeism and demonstrated abuse of alcohol which impacts her attendance and performance.” Under this agreement, any violation of policy, inappropriate conduct, or habitual absence would subject her to immediate termination.

The employee was subsequently the subject of police incident reports in July and October of 2005, both involving alcohol. By the end of 2005 and the beginning of 2006, she was the subject of at least one police report a month due to conduct while under the influence of alcohol. On February 1, 2006, she was terminated due to the fact she “continued to demonstrate an unwillingness or inability to report to work on a consistent basis.”

After termination, the employee filed a lawsuit under the Americans with Disabilities Act, saying that alcoholism is an impairment covered by the ADA’s ban on discrimination. A federal trial court dismissed the lawsuit, “citing the difference between an employer terminating an employee for alcoholism and terminating the employee for misconduct that may have been caused by alcoholism.”

Under the ADA, prior to the January 2009 amendments, the Act allowed employers to terminate employees for misconduct if it was caused by a disability involving drugs or alcohol. An employer could hold an employee who engages in illegal use of drugs or who was an alcoholic to the same qualifications and standards for employment, job performance, or behavior that they hold for other employees, even if it’s a result of drug or alcohol use.

Tweeting in the Workplace

2009-07-30T07:57:00.000-05:00

The July 2009 issue of the Nebraska Lawyer has an fascinating article on social media and discovery titled “Capturing Quicksilver: Records Management for Blogs, Twittering and Social Networks.” This excellent article written Sharon D. Nelson, Esq. and John W. Simek discuses the concerns raised by Twitter, Facebook, MySpace and other forms of “informal” communication that can create a damaging permanent record.

According to Ms. Nelson and Mr. Simek, all companies should have policies about blogging, tweeing and/or other such postings while at work. In fact, many experts advise companies to block access to social networking sites at work, unless there is a legitimate business need to such access.

Laws relating to these social networks and blogging websites are incredibly underdeveloped which presents a challenge to both employers and employees; however, there is case law to support employers who wish to prevent employees from accessing these sites at work.

Douglas Winter, head of the electronic discovery unit at Bryan Cave, stresses that “tweets” on Twitter are no different from letters, emails, or texts which can be damaging and discoverable. People don’t realize that postings on Twitter create a permanent record and they can end up anyway

Another recommendation from the article is for employers to check social networking sites to look for damaging information about potential employees to get a sense if there will be future trouble or a lack of discretion. As such, potential employees should check themselves before applying to find out what may be uncovered by a potential employer.

For more information, I would strongly encourage seeking out the July 2009 issue of the Nebraska Lawyer.

Your God or Your Job

2009-07-26T17:17:00.002-05:00

Religion in the workplace has been a controversial issue for a long time. Resolving the angst between freedom of speech and separation of church and state is easier said than done. According to the EEOC, religion-based charges have increased approximately 50% since 1997 and have skyrocketed since the devastation of 9/11. In 2008, EEOC received 3,273 charges of religious discrimination.

Workinfo.com has a great article titled "Guidelines on Religious Freedom and Religious Expression in the Workplace." I could not locate an author's name but the link to the article is: http://www.workinfo.com/free/downloads/74.htm

As an example, when Denver Nuggets' basketball star Mahmoud Abdul-Rauf refused to stand during the playing of the national anthem before NBA games because of his Islamic beliefs, the public finally got a glimpse of what employment attorneys have known for some time: Religion in the work place is a very sticky issue.

Title VII of the Civil Rights Act of 1964 prevents employers from hiring or firing employees because of their religious beliefs. Title VII also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer.

In one case, a police officer alleged his First Amendment rights were violated when he was forced to remove a religious pin on his uniform; in another, employees asserted they had the right to read their Bible silently as a way to protest a mandatory training seminar on “Gays and Lesbians in the Workplace.” To work towards a better set of guidelines for employees and employers, the Equal Employment Opportunity Commission (EEOC) on July 22, 2008, approved a new 94-page compliance manual on religious discrimination under Title VII of the 1964 Civil Rights Act.

As an additional primer for dealing with religion in the workplace, I would recommend also reading "Making Room for Faith: Handling Religious Expression at the Office" by Larry Stevens. That article can be found at: http://www0.ama-assn.org/amednews/2008/02/11/bisa0211.htm

Employer/Union Mandated Arbitration

2009-07-17T07:13:00.002-05:00

A wonderful article by three attorneys with the law firm of Littler Mendelson published in April 2009 (http://www.jdsupra.com/post/fileServer.aspx?fName=6d09ed2c-c256-4b64-bf6f-1a4f48e59321.doc), highlights a case the upheld a significant change in the rights of union-represented employees.

The article titled, “The Supreme Court Opens the Door to Mandatory Arbitrations of Discrimination Claims for Union Members,” discusses 14 Penn Plaza L.L.C. v Pyett, a U.S. Supreme Court decision, which upheld the ability for an employer and union to agree that employees can be required to arbitrate their employment discrimination and/or retaliation claims under the terms of a collective bargaining agreement.

The article highlights why this decision is so important—namely because it allows employers with unionized workforces to drastically reduce the number of claims they have to litigate in court. While the court’s decision in 14 Penn Plaza is limited to claims arising under the ADEA (i.e., age discrimination), the reasoning used by the Court is likely to be applied to a broad range of federal, state, and local employment statutes.

For more information on this topic, I encourage you to read the original article highlighted above.

Workplace Bullying

2009-07-09T11:25:00.002-05:00

The January/February 2009 volume of the Municipal Lawyer has a terrific article by Douglas Harvey titled "Bullying: It's Not Just Kid's Stuff." The article discusses that a recently completed workplace survey conducted in the U.S. found that thirty-seven (37%) of American workers have or are being bullied at work. It is surprising to learn that one in three employees face this issue and even more surprising to learn about the toll bullying takes on employees and their employers.

Mr. Harvey's article also states that up to seventy-five (75%) of work-bullying victims have elevated levels of stress, anxiety, sleeplessness, loss of concentration, paranoia, depression, panic attacks, neurological changes, muscular-skeletal and digestive problems, or chronic fatigue. This also causes problems for employers with increased employee absenteeism, turnover, medical claims, decrease in worker productivity, and even lawsuits.

No federal or state laws specifically prohibit workplace bullying (as separate from harassment and discrimination), but to date, twenty-five (25) workplace bullying bills have been introduced in over dozen states. In Europe, several nations already have laws that allow employees to recover for injuries or ailments caused by workplace bullying. In fact, in Great Britain an employee was awarded $1.5 million in damages to recompense for repeated bullying which eventually caused her to be hospitalized as a suicide risk.

Despite any laws on the books, some American courts are sympathetic to employees who are bullied. The Indiana Supreme Court recently upheld a jury verdict of $325,000 against a physician who bullied a subordinate employee.

Employers and Electronic Communication

2009-07-02T08:39:00.002-05:00

In the January/February 2009 issue of the Municipal Lawyer, Joshua K. Leader and Caroline C. Marino wrote an interesting article on "Municipalities and Employee Electronic Communications."

A primary case study set forth in the article is Quon v. Arch Wireless Operating Co., Inc., which involved a city police department that contracted for wireless text-messaging services for two-way pagers, which were distributed to employees. An employee, Quan, repeatedly went over the monthly text limit for his pager, which caused overages. The police department assumed that the overcharges were a result of him using the pager for personal messages. The department had suggested that their policy of banning personal use of department owed computers applied to the pagers but there was no official rule. Instead the employees who had the overages were to pay the amount that exceeded their limit. Eventually the department obtained transcripts of Quan’s texts and to find the real cause of the overages and discovered they were a result of sending personal messages. Quan then sued the police department, alleging his fourth amendment right to privacy was violated.

The U.S. Court of Appeals for the Ninth Circuit ruled Quan had a reasonable expectation of privacy in his texts because of the police department’s informal policy of letting employees pay for the overages. They also determined that the department should not have been allowed to obtain the transcripts from the service provider because the federal Stored Communications Act only allows the sender and addressee of the messages to view their content, regardless of who pays the bill.

The Quan case--and Mr. Leader's and Ms. Marino's article--should serve as a warning for both public and private employees. While an employer may need to monitor its employees for many reasons, it must be aware of the potential constitutional implications when doing so. Monitoring employee electronic correspondence could amount to an unlawful government search and seizure if the employees have a reasonable expectation of privacy in that correspondence. Employers that do wish to monitor their employees should adopt a ban on personal employer-issued devices and make clear that these devices are subject to monitoring.

Changes to Iowa Limited Liability Corporation Act

2009-06-23T07:00:00.007-05:00

As of January 1, 2009, all limited liability companies ("LLC") organized and incorporated in Iowa will be governed by a Revised Uniform LLC Act (Re-ULLCA). Iowa LLCs established before 2009 will continue to be governed by the old Iowa LLC Act (ILLCA) until January 1, 2011, which is the date when all LLCs--regardless of when formed--will be governed by the Re-ULLCA. In his article “Iowa’s Revised Uniform Limited Liability Company Act: Formation Issues” from the June, 2009 issue of The Iowa Lawyer, Matthew Dore does an excellent job of explaining the differences between the old ILLCA and the new Re-ULLCA, as well as setting forth some of the reasons for the changes.

Under the old ILLCA, to form an LLC one had to file “Articles of Organization” with the Secretary of State. Under Re-ULLCA, however, one files a “Certificate of Organization.” The change in terms, Dore explains, is to “signal that [a] publicly-filed record is not the LLC’S foundational document.” Rather, the Certificate of Organization simply states that an LLC exists. Under Re-ULLCA, it is the Operating Agreement that “establishes foundational accords for an LLC.” The only information needed in the new Certificate of Organization is the name of the LLC and the mailing addresses of the registered office and agent.

Another big difference is under the old ILLCA was that to form an LLC one must had to first file the Articles of Organization then have at least one member join the company. Under the new Re-ULLCA, an LLC exists once the Certificate of Organization has been filed regardless of the number (or lack thereof) of members. However, under the new Re-ULLCA, the LLC exists upon filing but it lacks the capacity to conduct any business other than admitting members.

The new LLC law will affect business and employers across Iowa so, for more information on the changes, I would encourage you to review Mr. Dore's article in this month's Iowa Lawyer.

Reimbursement of Training Wages

2009-06-05T06:50:00.002-05:00

The current issues of Cityscape, the magazine published by the Iowa League of Cities, has an excellent, anonymous article about police officer reimbursement of training expenses. I am currently working with several clients on this issue and thought this might be of assistance to others.

Many cities hire untrained persons as police officers with the agreement that the employee obtain the required training at the city's cost. The reimbursements typically include, the training fees, mileage, food, lodging and wages (i.e, travel time, study time and class time). In exchange, the employee agrees to reimburse the city for those expenses, if he/she fails to complete the training, or if he/she voluntarily resigns without having served for a minimum period of time.

Reimbursement is often on a sliding scale, with 100 percent within the first year, 75 percent between one and two years, etc. In a recent case, City of Humboldt vs. Geoff Miller, the officer challenged the validity of the agreement that he reimburse 100% of the wages as void under the minimum wage laws of the Fair Labor Standards Act. The minimum wage at the time was $5.15 per hour, the employee was receiving $12.64 per hour and he only ever spent half of any pay period in training. As such, the Court ruled that the reimbursement never reduced the officer's pay below the minimum wage and did not violate federal law.

Based on this case, which helped clarify existing law, both parties to a reimbursement agreement should make certain that the total amount of reimbursement (i.e., training fees, wages, mileage, food, lodging, etc.) for any given pay period is not less than the applicable minimum wage, which is currently $6.55 per hour but $7.25 per hour effective July 24, 2009.

Transgender Discrimination

2009-05-27T08:39:00.003-05:00

Margaret Hershiser has an illuminating article in the November/December issues of the Nebraska Lawyer highlighting employment discrimination against transgender individuals. This is of particular importance for Iowa employers as Governor Chet Culver signed Bill SF427 to include gender identity and sexual orientation to the state's Civil Rights Act.

The bill broadly definers gender identity as "a gender-related identity of a person, regardless of the person's assigned sex at birth" and sexual orientation as "actual or perceived heterosexuality, homosexuality, or bisexuality." This new classification pertains to employers, employees, employment agencies, labor organizations, public accommodations, housing, educational institutions, creditors, and anyone else previously covered by the Civil Rights Act.

While not every state has laws protecting transgender individuals, in 1989 the Supreme Court issued a decision for transgenders in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ann Hopkins was the only woman chosen as as candidate for partner with Price Waterhouse, along with 87 other males. Twenty candidates were held for later reconsideration, including Ann Hopkins. However, when the partners refused to re-nominate her, she quit and sued under Title VII claiming sexual discrimination. Some of her former employees advised her "to walk more femininely, talk more femininely, dress more femininely, wear make-up and have your hair styled and wear jewlery." The Federal District Court ruled in Hopkins' favor with regards to her claim that the partners criticism was a product of sexual stereotyping. The Court of Appeals and six members of the U.S. Supreme Court agreed that those type of comments displayed gender discrimination.

There have been other federal courts that decline the reasoning in Price Waterhouse to other transgenders. The court entered a summary judgment ruling for the employer that terminated it's employee, a pre-operative transsexual, based on the employee's expressed intent to use the women's restrooms while still retaining male genitalia in Etsitty v. Utah Transit Auth., 2005 WL 1505610 (D. Utah 2005). Esitty had changed his name and sex designation on his driver's license, however; the court found Price Waterhouse inapplicable, recognizing "[c]oncerns about privacy, safety and propriety are the reason gender specific restrooms are universally accepted in our society."

A growing problem for employers is how to handles issues where transgender discrimination and gender discrimination collide. For example, the law provides no guidance for an employer with a transgender employee who wants to use the woman's restroom and with female employees who do not want to share the bathroom with a person of the opposite gender.

Illegal Employees Filing DOL Claims

2009-05-27T08:32:00.003-05:00

The November/December issue of the Nebraska lawyer has an interesting article written by Rachel Alexander regarding the rise of lawsuits and claims by undocumented workers against their employers.

As Ms. Alexander discusses, recently, a federal court in Louisiana decided that temporary nonagricultural guestworkers working under H-2B visas were employees that could sue under the FLSA for minimum wage violations. While this isn’t a surprising decision, it may be surprising to learn that U.S. citizens and legal immigrants aren’t the only employees who can sue under federal employment laws. Undocumented workers can too.

Many federal employment laws define “employee” broadly to cover any employee or applicant looking to sue for overtime and minimum wage violations, employee benefits issues, retaliation, and discrimination. Some courts have gone so far as to say “it is well established” that these federal laws protect citizens and aliens alike and “whether an alien in documented or undocumented is irrelevant.”

As such, it is important to treat all employees, citizen or not, alike because you never know when one might use the broadly worded employment laws to their advantage.

Understanding the ADAAA

2009-05-14T07:52:00.002-05:00

The May 2009 Cityscape (the magazine of the Iowa League of Cities) has an overview article covering the recent passage of the ADA Amendments Act (“ADAAA”) and what it will mean for most cities. As the co-author of the article, I would not recommend it for its readability or prose; however, it does highlight a number of the major changes for employers.

The Act specifically rejected prior Court decisions restricting the scope of who was protected by the ADA. These changes went into effect on January 1, 2009, with the primary change being far more people falling within the definition of disabled.

All employers need to update their interactive process policies and to offer accommodations to a wider percentage of the workforce. Based on the changes to the ADA:

Expect more lawsuits to be filed. The ADAAA makes it easier for employees to make claims of disability discrimination and the defense of these suits will be more difficult as the more expansive construction of the meaning of disabled may limit prior defenses.
Review all employment policies to make sure the language complies with the new law. Handbook changes should be communicated clearly to all employees.
Make sure all managers and supervisors in the organization receive training regarding the changes to the ADA. These individuals must understand the implications of the changes in the definition of disability.
Focus on the interactive process with disabled workers and discuss what reasonable accommodations will allow them to satisfactorily perform their essential job duties. Cities need to make sure their supervisors and department heads know of their obligation to provide reasonable accommodations and that they do not reject requests out of hand, without analysis.

Economy Down – Age Discrimination Claims Up

2009-05-07T10:13:00.002-05:00

The online edition of the Palm Beach Post has an interesting article about some side issues involving the current economic crisis. Reporter Laura Figueroa writes that million jobs have been lost since 2007 according to the U.S. Department of Labor. In direct correlation, claims of age discrimination in the workplace are at an all time high. As an example, a group of 3M employees, past and present are accusing the Minnesota-based company of preferential treatment of workers under the age of 46. More than 6,000 employees could be a part of this class action suit.

Not only are the number of termination-related claims growing, but Ms. Figueroa also writes about examples of the number of failure to hire claims. 66-year-old Diane Schleich lost her home and her car, then had to move in with her son after losing her job as a secretary Florida. When Ms. Schleich applied for a vacant position, she was passed over for a 28-year-old with no experience. The Last week, a jury found Ms. Figueroa had been discriminated against and awarded her awarded $75,000 in damages for failure to hire. For more information, visit this link.

Employment Law Update

2009-04-29T06:32:00.002-05:00

As I have previously mentioned, I was tardy on some of my recent posting due to my work on the keynote speech at the Spring Employment Law Seminar held last week at Prairie Meadows Casino. For those of you interested in my presentation, I have attached a link to a .pdf version of the powerpoint slides.

The End of Racial Preferences?

2009-04-21T06:22:00.004-05:00

Two recent newspaper stories (available online) highlight the fact that race is, once again, a major factor in lawsuits before the United States Supreme Court. Joan Biskupic, writing in USA Today, talks about four cases the Court will hear this week that could radically reshape civil rights laws in the United States. The article, available online here, does a terrific job of setting for the expected positions of the justices, as well as the position of the President and Attorney General.

One of the cases discussed by Ms. Biskupic that will be heard this week is Ricci v. DeStefano, which is an employment discrimination case. David Savage, writing in the Los Angeles Times, goes into greater depth on the facts of that case and its potential impact. While Mr. Savage's entire article deserves a read (click here), in a nutshell:

Frank Ricci, a firefighter in New Haven, Conn., study hard for a civil service test for a chance at a promotion. Although Mr. Ricci earned the top score, he did not get his promotion. The City, after determining that no blacks would be promoted as a result of the test, rejected all the test scores and promoted no one.

At issue in the New Haven case is whether an employer can weigh the racial effect of a hiring or promotional standard. Justice Roberts has previously made it clear that it is time to forbid the use of race as a factor in the government's decisions, so the outcome of this case could have broad implications for the use of race in employment decisions.

Upcoming Employment Seminar at Prairie Meadows

2009-04-15T13:51:00.009-05:00

As a reminder to everyone, the 2009 Iowa Employment Conference will be held next week on April 21 at the Prairie Meadows Conference Center in Altoona. The cost is $99, which includes lunch and all conference materials. This one-day conference will feature powerful and informative concurrent sessions presented by leading human resource and training consultants, attorneys and benefits consultants on the most critical employment issues likely to affect Iowa employers in 2009. If interested, register on-line at http://www.hr-onesource.com/conferences.htm or call 515-221-1718, or fax in a completed form to 515-327-5050.

EEOC Job Bias Charges Reach Record-High

2009-04-09T09:13:00.003-05:00

As reported in the Human Resources Newsletter, Volume 9 Issue 7, workplace discrimination charges filed with the Equal Employment Opportunity Commission ("EEOC") soared to an unprecedented level of 95,402 during Fiscal Year 2008, a 15% increase from the prior year. The 2008 data show that all major categories of charges filed increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. While an increase was to be expected based on the increase in unemployment, the size of the increase has been a surprise.

Upcoming Employment Deadlines

2009-03-25T11:08:00.005-05:00

For HR professionals and employees alike, it is important to make note of the upcoming changes to various laws, such as:

Date Requirement

7/24/09 The federal minimum wage increases to $7.25 per hour.

1/1/10 A qualified long-term-care rider may be added to an annuity or life insurance contract such that the rider is fully funded through a partial cash surrender. Prior to the PPA, this would have been a taxable event. But as of taxable years beginning after Dec. 31, 2009, the act allows for this transaction as long as the investment in the original contract is large enough to support the transaction.

5/22/10 For collectively bargained plans, the rules on phased retirement pension distributions apply after the first plan year that begins after the last of the agreements terminates or, if earlier, this date.

12/31/10 The Economic Growth and Tax Relief Reconciliation Act (EGTRRA) amendments to pension provisions of the Internal Revenue Code and ERISA do not expire because the PPA eliminates EGTRRA's sunset provision.

1/1/15 Most U.S. companies will have until at least this date to fully fund their pension plans.

The Death of Courtesy

2009-03-19T10:40:00.004-05:00

Two recent articles highlight the decline in professional courtesy; both from employee to employer and between lawyers. The front page of the February 2009 Public Safety Labor News highlights a free speech case that arose from a lack of professional courtesy between peace officers.

In 2006, Peter Dahl worked as a deputy sheriff in Minnesota an emailed the Sheriff about a purchase request. The Sheriff responded with a message that ended by stating that Mr. Dahl "dragged us into your mismanaged personal affairs and I am getting real tired of it." Mr. Dahl responded stating the the email was another email with a "hostile and condescending tone," and that he was not going to respond in kind to remain "professionally objective." The communication between the two escalated to an altercation in the Sheriff's Office resulting in Mr. Dahl taking medical leave. See the Feb. 09 Issue of the Journal of Police and Firefighter Labor Relations for a more detailed summary of the case.

While on leave, Mr. Dahl was terminated: when he sued he argued, inter alia, that his termination was in retaliation for his communications with the Sheriff about morale--which were constitutionally protected as free speech. Dahl v. Rice Co. Minn., 2008 WL 5382333 (D.Minn. 2008). While Mr. Dahl's free speech claims were ultimately dismissed, it is clear the lawsuit (and the termination) would have been avoided in the first place if both parties had actually remained professional objective and courteous. It is clear that, in fact, much litigation could be resolved--or even avoided in the first place--if more employers and employees remained professional and courteous regardless of the circumstances.

Another interesting viewpoint, as well as the title of my posting, comes from Michael Meister's article in the March 2009 volume of the Nebraska Lawyer. Mr. Meister passes on advice he received in the past that the role of lawyers should be to help others resolve differences--not escalate them. In fact, he posits that only when a clear impasse is reached should opposing counsel "gird our loins for battle." I would suggest that this advice should apply not only to lawyers in lawsuits, but to employers and employees

COBRA Insurance Rights Extended

2009-03-12T07:30:00.006-05:00

The March 10, 2009 Issue of HR-News has detailed information about the federal government's expansion of COBRA rights under the Economic Stimulus Bill. Specifically, it discusses how the American Recovery and Reinvestment Act of 2009 ("ARRA") entitles employees terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months.

For eligible employees, the remaining 65% of their premiums are paid by employers, who may deduct the cost from federal payroll taxes. Employers need to immediately comply with the law by providing notice to eligible individuals, collecting only 35% of the premiums from the employees, paying the remaining 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount.

An employee (or certain ex-employees) and their covered dependents are eligible if: (1) they are involuntarily terminated (2) at any time between September 1, 2008 and December 31, 2009; (3) they elect COBRA coverage; (4) they do not earn more than $145,000 (or $290,000 for joint filers); and (5) is otherwise eligible for COBRA.

Another major change under the ARRA is the definition of a qualifying event. Under COBRA there are a number of these events but, under ARRA, there is only one: involuntary termination. Employees who voluntarily quit their jobs do not qualify for the reduced COBRA premiums. For involuntary terminations, the only exception is when the termination is for gross misconduct.

For more information, I would recommend the March issue of HR-News at http://www.hr-onesource.com/articles/mar09a-1_cobra.htm.

Economic Stimulus Bill Alters Workplace Requirements

2009-03-04T07:52:00.004-06:00

The March 2009 Issue of HR-News has an interesting article on the American Recovery and Reinvestment Act of 2009 (ARRA), which includes several important provisions affecting employees in the workplace, such as:

Expansion of the Consolidated Omnibus Budget Reconciliation Act (COBRA) to provide health coverage to individuals who have lost their jobs. This includes a 65% subsidy toward a qualified individual’s health care coverage premium for up to nine months. Additionally, employees who had initially declined coverage would have an additional 60 days to elect to receive the subsidy.

Expansion of the Work Opportunity Tax Credit (WOTC) that is currently available on an elective basis for employers hiring individuals from one or more of nine targeted groups. ARRA expands the WOTC by creating two new categories of individuals eligible for the credit: 1) unemployed veterans; and 2) disconnected youth who begin work for an employer in 2009 or 2010.

Modifications to the Unemployment Compensation Program through a variety of measures such as extension of benefits, increased dollar amount of benefits per week, and incentives for states to modernize their unemployment compensation programs. Workers will now have until December 31, 2009 to receive benefits, as opposed to the previous cut-off date of March 31. To receive modernization funds, states would have to, inter alia: 1) adopt an “alternative base period;” 2) grant unemployment compensation to workers for “family related needs,” including domestic violence, the illness of a family member and relocation of a spouse; and 3) grant unemployment compensation for those seeking part-time work.

Extension of Trade Adjustment Assistance (TAA) for two years for employees who lose their jobs as a result of increased imports or off-shoring to foreign countries.

Limitations on Executive Compensation for the highest paid individuals in companies that receive financial assistance from the Troubled Asset Relief Program (TARP).

Limitations on H-1B Visas for organizations that receive funds under the TARP or certain federal loans. These employers would be prohibited from obtaining H-1B visas for two years unless they have first taken good faith steps to recruit U.S. workers for the jobs in which the H-1B visas are sought. TARP beneficiaries would be required to offer such jobs first to any equally or better qualified U.S. workers who have applied.

HR-News is an excellent, and free, newsletter covering a variety of employment topics. For a more in-depth article on the stimulus provisions, please click here.

ADA and Employee Misconduct

2009-02-26T06:48:00.004-06:00

In light of the recent changes to the Americans with Disabilities Act, now is a good time to revisit a increasingly common (and still undecided) area of difficulty between employees and employers: whether the ADA protects employees from discipline and/or termination for disability-related misconduct.

The January/February 2009 issue of the Municipal Lawyer has a detailed article by Siona Windsor titled "The Americans with Disabilities Act," about the challenges municipal employees/employers face regarding mental disabilities that cause workplace misconduct (such as violence). However, much of her article applies equally to both public and private workforces; especially the challenges caused by a split in the federal circuits on how to treat disability-related misconduct.

As Ms. Windsor discusses, the Second, Ninth and Tenth Circuits all have found that disabled employees cannot be held to the same standard of conduct as non-disabled employees. While these circuits do find a difference between alcohol/drug related disabilities, generally employers operating in these circuits must first engage in a reasonable accommodation analysis (and to be safe a direct threat analysis) before imposing discipline--even for clear violations of express policy.

In contrast to the above three circuits, the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth (Iowa's federal circuit) and Eleventh Circuits all find that employers can hold disabled employees to the same standards of conduct as other employees. In these circuits, the courts have held that there is a clear difference between discipline for having a disability and discipline for misconduct caused by a disability.

Given the split in the circuits, Ms. Windsor cautions municipalities to exercise caution in disciplining disabled employees for workplace misconduct, regardless of what federal circuit the cities/counties are in. This is equally good advice for multi-state employers.

Upcoming Employment Seminar at Prairie Meadows

2009-02-12T14:10:00.004-06:00

I have been delinquent in my posting lately as I prepare for the 2009 Iowa Employment, Training and Benefits Conference. The seminar this year will be on April 21st at Prairie Meadows, and the cost is $99.

Already in 2009, we have seen significant ADA changes with the passage of the ADAAA, new FMLA regulations, and the passage of the Ledbetter Fair Pay Act. With a new President and one party controlling both houses of Congress, employers can expect legislative action on a variety of workplace initiatives that will re-shape the employment landscape.

To prepare employers for these far-reaching changes, the 2009 Iowa Employment Conference will be held on April 21 at the Prairie Meadows Conference Center in Altoona. The cost is only $99, which includes lunch and all conference materials. This one-day conference will feature powerful and informative concurrent sessions presented by leading human resource and training consultants, attorneys and benefits consultants on the most critical employment issues likely to affect Iowa employers in 2009. During each concurrent session, attendees will participate in lively discussions of practical approaches and new thinking on common employment problems including:

1. “2009 Changes to the Family and Medical Leave Act.” Mike Staebell of the U.S. Department of Labor will update you on the new provisions that became effective January 16, 2009. The revisions provide for new military leave entitlement, new administrative forms, new medical certification protocols, new notice requirements, and other changes impacting employers. It is critical for employers to remain current and compliant with this important law.

2. The Americans with Disabilities Act Amendments Act will focus on training employers on the provisions of the new law, how to be prepared when it is implemented, what organizational processes and procedures will need to be changed, and how to remain in compliance.

3. Managing Employees with Medical Conditions: Practical Advice on Navigating through the various laws affecting absences and leaves including the New FMLA Regulations and ADA Amendments along with various state and federal laws concerning pregnancies and workers compensation.

4. Other sessions include:

a. 2009 Employment Law Update

b. FLSA

c. Public Sector Collective Bargaining

Why You Need To Attend This One-Day Conference

· Stay up- to-date on latest employment issues

· Understand the changing benefits industry

· Network with other HR professionals

Who Should Attend:

· Business Owners

· Executives

· Managers

· HR Professionals

· Trainers

· Risk Managers

· Legal Counsel

· Benefits Specialists

HRCI Credits Applied For.

Register on-line at http://www.hr-onesource.com/conferences.htm or call 515-221-1718, or fax in a completed form to 515-327-5050. Only $99 per participant!

FMLA Changes for One and All

2009-01-23T14:05:00.002-06:00

[I apologize for the delinquent postings during the last several weeks; however, the combination of the holidays and a nasty (and reoccurring) winter cold made regular updates impossible.]

As of last week, covered employers are required to come into compliance with the Department of Labor’s new regulations on the Family and Medical Leave Act (“FMLA”). These new requirements are causing a number of employers to scramble to bring their existing policies up to date and, as a result, a number of articles have been published by various employment magazines, blogs and newsletters to help overwhelmed employees and employers. One article in particular, the cover story of the January 2009 Public Safety Labor Newsletter, does an outstanding job of summarizing the most significant changes in the over 700 pages of new regulations. Several of those changes are identified below:

Military Leave – the FMLA now provides medical-oriented leave for employees caring for family members with serious injuries or illnesses incurred while on military duty. Rather than 12 workweeks of leave, eligible employees are entitled to 26 workweeks of leave to care for a covered service member. In addition, this military leave is available to a wide range of family members, such as spouses, children, parents, and “next of kin” (which is a new term that does not apply to regular FMLA leave). Another major difference between military leave and the other types of FMLA leave is that employers are prohibited from requested 2^nd or 3^rd opinions from doctors and may not require re-certification.

Qualifying Exigency Leave – the FMLA added another type of military leave called “Qualifying Exigency Leave,” which an employee may us for various non-medical “exigencies” arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or on call to active duty status. The regulations identified several reasons for this type of leave varying from counseling to childcare. This type of leave can be used a maximum of 12 weeks.

Certification – the new regulations attempt to streamline the certification process and allow an employer to directly contact an employee’s health care provider to clarification certification forms. The new regulations also require the employer to notify the employee in writing if the medical certification is incomplete or insufficient and to specifically identify the missing or insufficient information.

Paid Leave – under the new regulations, an employer may restrict an employee’s right to use paid leave in conjunction with FMLA leave as long as that is consistent with the employer’s policies.

Light-Duty Work – the regulations clarify that time spent performing light-duty work does not count against the 12-week allotment of FMLA leave.

Waiver of Rights – the regulations state that employees may voluntarily settle FMLA claims or waive FMLA rights without approval from the DOL.

For more information on these categories and/or the other changes to the FMLA, I would encourage you to read the January 2009 Public Safety Labor Newsletter.

How Obama's Election May Effect Employment Law

2008-12-10T07:52:00.004-06:00

This week I would encourage you read up on new employment-related legislation that may be enacted over the next few years, such as the Employee Free Choice Act, the Re-Empowerment of Skilled and Professional Employees and Contstruction Trade Workes ("RESPECT") Act, the Patriot Employers Act, and changes to the Family Medical Leave Act.

Littler Mendelson has published an interesting (and detailed) report on the potential changes the incoming President and Congress may enact effecting employment and labor laws. this report may be downoladed from Littler's website at http://www.littler.com/PressPublications/Lists/Littler%20Reports/DispReport.aspx?id=27

Iowa Employment Non-Compete Clauses

2008-12-03T08:00:00.003-06:00

Iowa is one of the more pro-employer states when it comes to restrictive employment covenants. Generally, Iowa courts will uphold agreements that preclude former employees from competing with an employer (with limited duration and limited area--such as 12 months and within a 100 mile radius of the job site). However, a recent Iowa appeals court decision may be a sign that our courts are beginning to take a more critical view of these types of agreements.

Dr. Thomas Warren was employed as an assistant professor at the University of Iowa and, as part of his job duties, he was required to spent part of every year working as an oncologist at the the University of Iowa's Hospital. When he was hired, Dr. Warren executed an employment contract that included a covenant not to compete and/or practice medicine for a two year period in, essentially, a 50 mile radius of the University. Four years later, Dr. Warren left the University and went into private practice in Cedar Rapids within the 50 mile radius.

The University sued Dr. Warren seeking an injunction to stop him from practicing medicine; however, the trial court denied the University's request. Both the trial court and the appellate court set forth the long-held legal standard regarding restrictive covenants, which is: (1) whether the restriction is "reasonably necessary" for the protection
of the employer's business; (2) whether it is "unreasonably restrictive" of the employee's rights; and (3) whether it is "prejudicial" to the public interest.

Normally, Iowa courts recite this standard before generally enforcing the covenant in front of them but, in this case, both courts found that the University failed to satisfy this test. Specifically, the University was unable to convince the courts that it was reasonably necessary to have a restrictive covenant and that, as a practicing physician, it was prejudicial to the public interest to preclude Dr. Warren from practicing medicine.

This case may yet be reversed by the Iowa Supreme Court but, if this decision stands, it may signal the beginning of a shift in the ability of employers to keep former employees from directly competing with them. For more information on this case, see The Board of Regents, State of Iowa and the University of Iowa vs. Dr. Thomas Warren, Iowa Court of Appeals, November 26, 2008.

Public Records Exemptions for Allegations

2008-11-26T08:36:00.001-06:00

Like most states, Washington has an open records law—known as the Public Disclosure Act (“PDA”). These types of laws are to allow the public "full access” to governmental information subject to certain privacy exceptions. For example, the PDA exempts "personal information and files maintained for employees of any public agency to the extent the disclosure would violate their right to privacy."

The Washington Supreme Court recently addressed whether the identity of employees receiving unfounded complaints are exempt from disclosure under the PDA. In that case, the Seattle Times sought copies of years of records maintained by a school district involving allegations of teacher misconduct. Three-dozen teachers brought a lawsuit to prevent the school district from releasing the records as the disclosure would allegedly identify them as subjects of unfounded sexual misconduct allegations—which would violate their privacy rights.

The Washington Supreme Court agreed with the teachers and found that "when a complaint regarding misconduct during the course of public employment is substantiated or results in some sort of discipline, an employee does not have a right to privacy in the complaint.” However, an “unsubstantiated or false accusation of sexual misconduct … does not bear on the teacher's performance or activities as a public servant.” In fact, the mere “allegation of sexual misconduct toward a minor may hold the teacher up to hatred and ridicule in the community, without any evidence that such misconduct ever occurred.” The Court ultimately held that similar public employees “have a right to privacy in their identities because [] unsubstantiated or false allegations are matters concerning … private lives and are not specific incidents of misconduct during the course of employment."

The Court did not draw a bright line between unsubstantiated and substantiated complaints, leaving it for individual public entities to determine that; however, the reasoning behind this decision leaves this reasoning open for adoption in other states—including Iowa. See Bellevue John Does 1-11 v. Bellevue School District No. 405, 189 P.3d 139 (Wash. 2008). For more information, see the October 2008 Public Safety Labor Newsletter

Federal Appeals Court Upholds Massive Verdict Against City of Los Angeles.

2008-11-12T09:10:00.000-06:00

In a lawsuit brought by former LAPD police officers, the Ninth Circuit recently upheld a jury award of five million dollars a piece for the plaintiffs. The case arose from a LAPD investigation and prosecution of three former police officers falsely implicated by a former LAPD officer. The criminal charges against the three officers resulted in acquittals and those officers subsequently brought suit against the district attorney, the City of Los Angeles, and the former Chief of Police for violations of their constitutional civil rights. After a trial lasting several weeks, a jury awarded the officers $5,000,001 each. When the Court refused to set aside the jury's verdict, the City appealed to the federal Ninth Circuit Court of Appeals.

The City's argument on appeal was that the treatment of the officers was not the result of a "custom or practice" by was simply the result of the false allegations made by another officer. (Absent a "custom or practice," the City could not be liable for any constitutional violations.) The appellate court held that the jury reasonably could have concluded that Chief of Police's actions were "indicative of an official policy whereby the City impliedly or tacitly authorized, approved, or encouraged illegal conduct by its police officers."

The City also challenged the size of the jury's verdict. The Court rejected the challenge, finding that "each officer testified about the adverse physical and emotional effects of the media attention and his loss of reputation." Some of the officers developed high blood pressure and intestinal problems, began drinking frequently and heavily, became paranoid and suicidal, experienced heartburn, back and neck pain, and anxiety attacks, and one of the officers gained 100 pounds, was hospitalized for chest pains, and deveoped high blood pressure. The officers also testified as to the adverse effect the experience had on their personal and professional lives. The Court found the officer's "testimony is substantial evidence from which the jury could find that the harm to each officer justified an identical damage award."

This case again underscores the importance for municipalities to periodically review each department to determine whether any of the express or implied customs and practices of the department are in violation of the law since a city could be hit with a substantial financial burden in the event someone is wronged by such a custom or practice. For more information see Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008); or the October 2008 Public Safety Labor News publication.

Police Chief sued individually for FMLA violation

2008-11-06T08:01:00.002-06:00

Daniel Rasic was a police officer with the City of Northiake, Illinois. In 2007, Rasic requested and the City approved his Family and Medical Leave Act (“FMLA”) request for the birth of his child. There were complications surrounding the birth and Rasic requested, and the City approved, additional FMLA leave.

During a telephone call with the Police Chief while Rasic was on leave, the Chief told Rasic that he could not ‘take the summer off,’ and that ‘everybody else had kids,’ so Rasic needed to make plans to return to work. Ultimately, the City terminated Rasic prior to the completion of his approved FMLA leave.

Rasic then filed a lawsuit against the City, the Police Chief, and the members of the Police Commission. The Chief filed a motion to dismiss the lawsuit on the grounds that individual supervisors cannot be sued under the FMLA. A federal trial court disagreed with the Chief and denied his motion.

The trial court ruled that, "a plain reading of the text of the FMLA leads to the conclusion that supervisory government employees … can be sued individually.” The trial court noted that other courts, most notably the Sixth Circuit, have held to the contrary but stated that they “disagree with these decisions [because] the FMLA makes clear that the definition of employer includes both individuals who act in the interests of an employer, and public agencies."

This case is similar to others around the nation that, in recent years, have found supervisors to be individually liable for employment-related claims. For more background on this case see the November 2008, Public Safety Labor News.

Retaliation Must Be Close In Time

2008-10-29T08:27:00.002-05:00

Two recent federal court decisions highlight the fact that it is very difficult for employees to succeed with retaliation claims when the employee's protected conduct and the employer's adverse action are separated by a great length of time.

In Stout v. City of Wagoner, a 2008 Oklahoma federal court case, a former police officer sued his department when he was fired 10 years AFTER he ran an political ad against the police chief. During the 10 year period, the officer had been offered several promotions and had eventually accepted a promotion to lieutenant. The Court, in dismissing Stout's claims, held that lapses in time between conduct and termination establish that retaliation was not a reason for termination as anger and resentment are emotions that diminish with time.

In a Connecticut federal court case decided around the same time, a district court judge ruled that no reasonable member of a jury could find retaliation when five years had elapsed between the former employees actions and ultimate termination. See Giglio v. Derman, 560 F.Supp.2d 163 (D.Conn. 2008).

There is no bright line rule about how long is too long for retaliation claims, but more and more cases are showing that the more time that does elapse between protected activity and adverse action, the less likely an employee can bring a successful retaliation case. For more information, see the October 2008 Public Safety Labor News.

Iowa Code 91B and References

2008-10-23T08:11:00.004-05:00

In the modern business world, employers are often nervous about providing any information about current/former employees other than name, rank and serial number. This is true in Iowa, even though Iowa Code Section 91B.2 provides immunity to employers who, in good faith, provide information about current or former employees. There is very little Iowa case law with regard to this provision; however, more and more courts nation-wide are providing similar immunity to employers--especially when the current/former employee has signed a release.

Under 91B.2, an employer's representative who, upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current/former employee, provides work-related information about a current/former employee, is immune from civil liability unless the employer's representative acted unreasonably in providing the work-related information.

The Code Section defines "unreasonable" as: (a) violating a civil right of the current/former employee; (b) providing information to a person with "no legitimate and common interest" in receiving the information; (c) providing irrelevant information, provided information with malice, or providing information without a good faith belief that it is true.

Recently, a court in Michigan found that, even without such express statutory language, an employer is immune from claims as long as the current/former employee signs a release allowing the disclosure of work-related information. In the Purdy v. City of Kalamazoo case, a deputy chief received a negative evaluation and, rather than signing it, he chose to resign. He later applied for a position with another department and, as part of the application process, signed a release authorizing the disclosure of "any and all institutions to give ... any and all information concerning my previous employment."

The prospective employer contacted the City of Kalamazoo, who provided a copy of the deputy chief's personnel file--which included the unsigned evaluation. When the deputy chief did not get the job, he sued his former employer. In dismissing the case, the court stated that broad waiver and release language in an employment application removed any potential liability for damages resulting from the disclosures of the negative information.

As a result of the protections of the Iowa Code, and relevant court decisions, employers should feel more comfortable providing reference information; however, as a precaution, employers should strongly consider obtaining a written release from the current/former employee prior to providing the information.

Presentation Time Again

2008-10-15T06:33:00.003-05:00

I apologize for the recent gaps between postings but I have been working this last few week to get ready for an employment law update seminar regarding recent (and proposed) updates to employment law and regulations. For anyone who attended or anyone otherwise interested, I have attached a copy of the opening session presentation for your review.

http://snipr.com/4dot4-yrz1y3

Supreme Court Eliminates Public Employee Discrimination

2008-10-02T07:37:00.003-05:00

A recent U.S. Supreme Court decision has taken away one potential legal theory from municipal employees. In Engquist v. Oregon Dept. of Agriculture, 128 S.Ct. 2146 (2008), the State of Oregon asked the Court to review a trial court award of $425,000 based solely on a claim that the employee had been discriminated against because she was treated differently for arbitrary reasons.

Although the trial court found the public employee's claim was enough to proceed to trial (and judgment), the Supreme Court ruled that this public employee had no special right to a "class of one" discrimination claim based solely on the fact that her employer was a governmental entity. The Court further held that to treat employees differently does not automatically raise equal protection concerns; rather, it should be viewed as an employer exercising its "broad discretion" over the employee/employer relationship.

Sweeping ADA Changes for All

2008-09-25T11:29:00.002-05:00

The Law firm of Fisher & Phillips LLP has recently published an excellent overview on their website (http://www.laborlawyers.com/shownews.aspx?Meet-the-New-ADA:-Massive-Changes-Ahead-for-Nations-Employers&Ref=list&Type=1122&Show=10879) of the new changes to the Americans with Disabilities Act, which go into effect on January 1st of 2009. As set forth in the overview, the top changes are:

1. "Disability" Definition To Be Read Broadly

First and foremost, the new ADA instructs courts (and employers) to adopt a broad standard when determining whether an individual is considered disabled. The actual language of the new law states that it provides "a broad scope of protection" for employees, and provides that courts examining ADA cases need to provide coverage for plaintiffs "to the maximum extent permitted" by the statute.

2. Mitigating Measures Are To Be Ignored

When making a decision about whether an employee is considered sufficiently disabled to receive protection under the ADA, employers and courts must now ignore any and all mitigating measures being used by the individual in question. This includes medications, prosthetics, hearing aids, mobility devices, and learned adaptations. This will be, at times, a guessing game for the employer and the court, as they will be forced to make speculative assumptions about "what may be" instead of "what is."

3. Just About Anything Is A "Major Life Activity"

Up until now, the ADA was silent on what constituted a "major life activity" – that is, the areas of life that needed to be adversely affected in order for someone to claim a disability. Although the EEOC had proposed a list of recommended activities, many courts rejected the agency's broad interpretation and even the U.S. Supreme Court expressed skepticism about the list.

But the new ADA includes a thorough and exhaustive list of activities, including caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, thinking, communicating and working. Moreover, it also expressly states that the operation of any major bodily function is considered a major life activity – including functions of the immune system, cell growth, digestive functions, reproductive functions, and neurological and brain functions.

4. The "Regarded As" Prong Is More Broadly Read

In addition to impairments that substantially limit a major life activity, the ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled. Under previous federal court interpretation, ADA plaintiffs needed to prove that the employer regarded them as being substantially limited in a major life activity, which was a difficult standard to meet. Under the new ADA, a "regarded as" plaintiff need only demonstrate that the employer perceived the individual as having a mental or physical impairment.

5. EEOC Permitted To Regulate ADA And Define "Substantial Limitation"

The new ADA also provides an express mandate to the Equal Employment Opportunity Commissions (EEOC) to issue binding regulations and other interpretative guidance to further flesh out the statute. This is significant because the U.S. Supreme Court had called into question the EEOC's authority to do so under a technical reading of the old ADA; such concerns are now eliminated. Also, the new ADA specifically requests that the EEOC provide a regulatory definition for the term "substantially limits" that lowers the standard to a level consistent with congressional intent.

6. Miscellaneous Amendments

Impairments that are "episodic or in remission" can still be considered to be disabling if, "when active," they substantially limit a major life activity. In other words, employers again need to play a guessing game and determine whether episodic or intermittent impairments could rise to the level of disability and treat employees accordingly.

The statute will attempt to conform to Title VII and other anti-discrimination statutes by changing some technical language of the act to more clearly demonstrate that a plaintiff can prevail in a claim by showing discrimination "because of" the protected disability.

Finally, the new ADA prohibits "reverse discrimination" claims – employees without disabilities cannot sue under the ADA by claiming that an employer impermissibly rejected them in favor of other individuals with disabilities.

The overview cited above goes into detail on the application of these changes for employer/employees; however, it is clear that disability discrimination claims are now on, at least, equal footing with other types of discrimination claims.

Text Messages and Employee Privacy

2008-09-10T10:48:00.003-05:00

A Ninth Circuit decision recently overturned a favorable ruling for cities regarding employees' expectations of privacy. In the case of Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), a municipal employee was issued a pager and informed that he would be responsible for any charges beyond the monthly contract. The city had a general internet/email policy stating that employees using city-owned electronic equipment were limited to "city business," access would be periodically monitored and users had "no expectation of privacy." In addition the employee signed an acknowledgement which contained similar language.

The employee consistently used the pager to send text messages in excess of that allowed by the monthly contract. His supervisor told him that, as long as the employee paid for the overages, the city would not review his bill. Although the employee did pay the monthly overages, eventually the city became concerned with the significant amount of text messages the employee was sending and ultimately reviewed said messages.

The employee and the recipients of the messages sued the city, several employees/supervisors and the pager provider for violations of the California Constitution, the Fourth Amendment and the Stored Communications Act. Although the district court ruled in favor of the municipal defendants, the Ninth Circuit reversed that decision. Specifically, the appellate court suggested that the city should have asked the employee to obtain the messages, "redact personal messages and grant permission to the [employer] to review the redacted transcript."

One lesson to learn from this case is that even if an employer has policies (and signed acknowledgements) stating that employees should have no expectation of privacy, if the employers actual practice provides an expectation of privacy then the employer can be found liable. For more information see the July/August 2008 Municipal Lawyer.

Election Signs

2008-09-10T08:10:00.003-05:00

Every election season the courts ready themselves for another round of litigation involving campaign signs. Municipalities have taken many different positions regarding such election signs and there is still no bright-line test to follow when drafting a relevant ordinance.

Randal Morrison has written an article in the July/August 2008 issue of the Municipal Lawyer that provides an excellent overview of the outstanding issues in the field. Some of the highlights of the law are as follows:

1. Laws banning all elections signs have consistently been declared unconstitutional.

2. Banning signs posted on public property are allowed, but not bans on "holding" signs on public property (people can hold elections signs on public property but can be stopped from sticking signs on telephone polls, building walls, in the grass, etc.).

3. A city cannot favor commercial signs over campaign signs, so wherever commercial signs are allowed, election signs must also be allowed.

4. Time, place and manner of temporary signs (not just election signs) have been generally upheld by most courts. Time (i.e., duration) is the issue that has been most difficult for courts; however, the cases that do uphold time restrictions are those where a municipality's regulations are content neutral.

5. Time limitations that involve how long before or how long after an election a sign may be allowed have generally been found to be unconstitutional. Where the courts have upheld some content-neutral ordinances that limit all temporary signs to a specific length of time, the courts strike down more specific ordinances governing how close to an election the sign is allowed.

6. Ordinances that impose special permits, fees or bond requirements for posting election signs are always found to be unconstitutional.

For more information, please refer to Mr. Morrison's article "Regulating Election Signs" in this month's Municipal Lawyer.

Employment Manuals and Property Rights

2008-08-26T13:29:00.002-05:00

A case last year in the 10^th Circuit shows the federal courts increasing reluctance to provide municipal employees with property rights in their continued employment. In that case, Darr v. Town of Telluride, Co., 2007 WL 2218882 (10^th Cir. 2007), Mr. Darr was hired as a deputy marshal in 2001. At that time, the City’s policies provided all employees with notice and a hearing before their employment was terminated. However, during 2001 the policies were being revised and the manual Mr. Darr received had “Undergoing Revision” on its cover. Ultimately, new policies were adopted the following year in 2002, which did not provide for a pre-termination notice or hearing.

As typical with employment manuals, both the City’s old and new policies stated that they were “not intended to serve as an employment contract,” and that employment was “at will.” Both the old and new policies also provided that the City reserved the right at all times to amend or alter the benefits provide to employees.

Mr. Darr signed an acknowledgement form stating that he had been provided the new policies, understood that it was not an employment contract and that the City reserved the right to alter or eliminate any benefits.

In 2003, the City began receiving complaints about Mr. Darr and he was ultimately fired with prior notice or a hearing. Mr. Darr subsequently brought a Section 1983 action alleging, among other things, his procedural due process rights were violated when he was deprived him of his property interests in a pre-termination hearing. Mr. Darr argued that the old employment policies gave him a property right by requiring a pre-termination hearing.

The trial court granted summary judgment and the U.S. Court of Appeals for the Tenth Circuit affirmed the grant of summary judgment in favor of the City. The courts found that the relevant policies were clear that Mr. Darr was an “at-will” employee and, even assuming that the old policies created a property interest in a pre-termination hearing, the City amended the old policies and Mr. Darr had no basis to rely upon said policies.

What this, along with a number of other recent appellate cases, shows is that the federal courts are becoming much more conservative in their approach to municipal employment law.

8th Circuit Reaffirms Sex Harassment Defense

2008-08-22T10:15:00.003-05:00

In Adams v. O'Reilly Automotive, Inc.—a case decided last week by a panel of 8th Circuit judges—the Court reaffirmed the strength of the Ellerth/Faragher defense for employers in sexual harassment cases. In this case, the plaintiff argued of a multiple year history of harassment on the part of one of defendant’s supervisors.

The Ellerth-Faragher defense requires an employer to demonstrate that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Faragher, 524 U.S. at 807. Proof that an employer had promulgated an anti-harassment policy “is not necessary in every instance,” id., but “distribution of a valid anti-harassment policy provides compelling proof” that an employer exercised reasonable care in preventing and promptly correcting sexual harassment. Weger v. City of Ladue, 500 F.3d 710, 719 (8th Cir. 2007).

In this case, there was no dispute that O'Reilly had promulgated and disseminated an anti-harassment policy; rather, the parties disputed whether the policy was reasonable and properly enforced. One of Adams arguments was that the policy required a witness to corroborate the harassment. The 8th Circuit found nothing objectionable in O'Reilly requiring “some kind of confirmation of sexual harassment” before taking action against alleged harassers. Indeed, the Court found that a corroborating witness “rightly honors the vaunted principle that the burden of proof is on the accuser, and it prevents discrimination against those accused of sexual harassment.”

After establishing that the O’Rielly policy was reasonable, the Court then found that Adams’ delay in reporting the harassment was unreasonable and that O’Reilly’s immediate response after she reported the harassment was sufficient. Adams argued that her delay in reporting was reasonable in light of her fear of retaliation; however, the 8^th Circuit stated that “fear of retaliation” is not generally an excuse for failing to report sexual harassment.

The Panel concluded that, where an effective policy against sexual harassment is in place, the employer “as a matter of law” has satisfied its duty to inform itself about its employees’ behavior. This case again shows that the strongest defense an employer (public or private) has to sexual harassment claims is to implement an anti-harassment policy and swiftly respond to harassment claims.

Changes to Iowa's Wage Payment Laws

2008-08-14T11:43:00.004-05:00

Iowa Code Chapter 91A (i.e., the wage payment law) recently underwent changes that took effect last month. Among other things, the law was revised such that employer are no longer allowed to mail paychecks to employees without a written authorization from each employee. See 91A.3(3).

Specifically, the Iowa Code now states that wages "shall be paid at the employee's normal place of employment during normal employment hours" unless the employee agrees to be paid via direct deposit or "at a place and hour mutually agreed upon by the employer and employee." Employers are no longer allowed to mail paychecks unless the employer has a "written request by the employee."

Assuming an employee has not provided a written request, how does an employer pay an employee who is absent and/or no longer working for the employer on a payday? Guidance is provided pursuant 91A.3(5), which states that if an employee is absent from work on a payday, the employer shall, after a demand by the employee, pay the wages either (a) within seven days following the payday (if the demand is made within those seven days); or (b) within seven days following the day on which demand is finally made (if the demand is not made within the seven-day period).

The bottom line is that, without written authorization from the employee, an employer must hold the check at the regular place of employment for the employee to pick up. For an employee who quits and moves away prior to the date of his/her last payday, this can cause considerable problems.

New Standard for Filing Federal Claims

2008-08-14T11:32:00.002-05:00

During a recent term, the United States Supreme Court replaced the long-held rule that a lawsuit should not be dismissed for failure to state a claim unless it appears "beyond doubt" that there are "no set of facts" that would entitle the plaintiff to relief. The new rule, established in the Bell Atlantic v. Twombly case, requires plaintiffs to set forth in their petition enough facts to state a claim that is "plausible on its face."

This decision has incited a rash of motion to dismiss filings in federal court, despite the fact that it initially appeared to be applicable only to class action claims. However, it is now clear that any petition filed in federal court is subject to a higher standard at the time of filing that the same claim filed in state court. This new standard raises a number of questions, not the least of which is whether state courts will eventually adopt this language as well.

For a great overview of the Twombly case and its potential impact on federal litigation, see "Twombly's New 'Plausibility' Standard for Complaints" written by Tillman L. Lay and published in the November/December 2007 Issue of the Municipal Lawyer.

Employment Law Update

2008-07-31T15:21:00.004-05:00

I have been working this last week on a presentation for the Iowa City Manager's Association regarding recent (and proposed) updates to employment law and regulations. For anyone who attended or anyone otherwise interested, I have attached a copy of the presentation for your review.

http://snipr.com/38gih-vbkfso

Section 1983 Lawsuits and Deliberate Indifference

2008-07-23T09:01:00.003-05:00

As municipal defendants are aware, 42 USC 1983 claims for violations of civil rights can be time consuming and costly; however, the plaintiffs in these types of cases have a much higher hurdle than plaintiffs in other tort cases to prove liability. Specifically, 1983 plaintiffs have to show that a municipality's "deliberate indifference" caused the plaintiff's injuries.

In the February 2008 issue of the Nebraska Lawyer, attorney Eric Oelrich argued that this heightened standard encourages municipalities to ignore implementing more specific policies to provide guidance to municipal employees, and urges Congressional action to weaken this higher standard.

The primary case discussed in Mr. Oelrich's article is Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007). In that case, an officer was searching for a suspect with a police dog. The dog ultimately bit an individual who, almost immediately thereafter, was cleared as a potential suspect. The individual later sued claiming that the policies regarding the use of police dogs was not clear enough to provide guidance to the officers and was the proximate cause of his injuries.

The Eighth Circuit, en banc, ultimately held that the city and its employees were not liability for the injuries sustained by the plaintiff; however, Mr. Oelrich is concerned both with the lack of ability for a plaintiff to recover in these types of cases and as the potential for liability falling to the municipal employees in the event the plaintiff cannot prove "deliberate indifference" of a municipality. The article proposes lowering the plaintiff's burden of proof while creating a system for apportioning damages between a municipality and its employees.

Free Speech vs. Job-Related Remarks

2008-07-17T07:41:00.003-05:00

There have been two recent federal cases interpreting the U.S. Supreme Court's decision in the Garcetti v. Ceballos lawsuit. In that case, the Court denied any free speech protection to municipal employees who are disciplined or terminated after raising concerns "related to [the employee's] job function." See Public Safety Labor News, July 2008.

In Texas, a police officer was terminated after reporting the crimes of fellow officers to his Chief. Officer Sillers contended both that his First Amendment rights, as well as rights under a whistleblower's statute, were violated by the Chief's actions. In Arkansas, another police officer was terminated after merely expressing concerns to the City Administrator about a new city program that he felt was wasteful of city funds.

In both cases, the federal trial court held that the Ceballos case prohibited the officers from pursuing First Amendment claims because 'the remarks were made as part of the officers' job duties and, therefore, were unprotected.' See Sillers v. City of Everman, Texas, 2008 WL 2222236; and Barrows v. City of Forth Smith, Arkansas, 2008 WL 2026088.

Both of these district court cases appear to expand the holding of Ceballos, especially the Barrows lawsuit as that officer's concerns were not based on his job-obtained knowledge nor were they made up the internal chain of command (i.e., to the Chief). What both officers and cities should take away from these decisions is the idea that federal courts no longer appear interested in ways to increase the number of First Amendment lawsuits and/or employment lawsuits on their docket.

'Never' means at least until the next election.

2008-07-09T08:30:00.003-05:00

The May/June 2008 issue of the Municipal Lawyer mentions some of the more lively ListServ discussions. One in particular should be of interest to both attorneys and government officials.

Patti Wells, an attorney with the Denver, Colorado Water Legal Division, was struggling to find authority for the proposition that a current city council cannot limit the authority of a future city council. Everyone she spoke with agreed with her but could not provide any case law. Finally, she uncovered Fletcher v. Peck, 6 Cranch 87 (1810), a case decided by Chief Justice John Marshall involving Indian reservations and grants of land from the King of England.

A more recent case citing Fletcher v. Peck discussed the ability of a State (or political subdivision) to limit its power to act in the future--either through contract or legislation. See U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 23 (1977). In that case, Justice Marshall's quote was approvingly re-stated that "one legislature cannot abridge the powers of a succeeding legislature." As such, even in cases where a city or county enters into a long-term contract in accordance with all other legal authority, a future council/board may not have to comply with the terms of the contract as "the Contract Clause [of the United States Constitution] does not require a State [or political subdivisions] to adhere to a contract that surrenders an essential attribute of its sovereignty." See id.

Iowa's Smoking Ban and You

2008-07-03T07:14:00.004-05:00

Effective July 1, 2008, Iowa has imposed a ban on smoking that covers both public and private entities. Under this new law, and the emergency rules to enforce it, smoking is prohibited in the following municipal areas:

(a) all enclosed areas that the public has access to;

(b) public transportation, as well as boarding/waiting areas;

(d) vehicles owned, leased and/or under city control;

(e) all enclosed places of employment (except casinos); and

(f) outdoor areas, such as the grounds of a public building or seating area of a stadium.

In addition to the areas expressly covered, cities are also given the authority to designate other areas as non-smoking. Essentially, this ban limits people on or around city land to smoking only in the public right of way (i.e., bike trails, cemeteries, fairways of golf courses, streets, common sidewalks, unenclosed areas of parks) or in a private vehicle.

Although the Iowa Department of Public Health ("IDPH") is the agency charged with primary enforcement of the ban, cities are expected: (1) to place “No Smoking” signs in entrances to buildings places and city vehicles; (2) remove all ashtrays from places where smoking is prohibited; as well as (3) inform violators that they are banned from smoking and, if necessary, discontinue service to violator, request the violator leave, and/or notify law enforcement.

Persons who smoke in violation of the ban are subject to a $50 fine; however, cities are subject to fines up to $500 per day for failing to post signs or deal with violators. In addition, cities can be subject to fines up to $10,000 for retaliating against an employee who reports a violation of the new law.

This measure is a substantial change to existing law and it is likely that when the final administrative rules go into effect, the IDPH will provide additional guidance on the law and its enforcement.

Effective Client/Counsel Relationships

2008-07-03T06:54:00.004-05:00

Dustin Cole, the president of Attorneys Master Class, has an excellent article in this month's the Nebraska Lawyer called "Four Steps to Building Great Client Relationships." Although the article is written from an attorney's viewpoint, the tips apply equally to clients and attorneys.

The first step is to choose your relationship carefully. If you meet with a client/attorney and you have a bad feeling about things--walk away. Very rare is the relationship that starts out uneasy and improves over time; and, if you are not comfortable initially, you will be spending time on the relationship that should be spent on the case.

The second step is to define the relationship. For lawyers, that means walking through your fee contract, billing procedures and the best way to keep in touch. For clients, that involves discussing what you hope to get out of the representation, in what manner, and how often, you want to be kept informed, and how long--and how much--the matter may take to resolve.

The third step is to actually keep in contact. Mr. Cole makes a great point when he states that "every time you communicate [you are] doing only one of two things: increasing trust or decreasing it." The best way to increase trust is to keep in contact. Lawyers should expect to be in contact at least once a month, even if nothing is going on, to provide an update and answer questions. Clients should contact their lawyers when questions arise about the case status or information becomes available that the lawyers does not know about.

Mr. Cole's final step is to consistently apply these rules. Lawyers should remember before making exceptions that 'today's favors are tomorrow's demands,' and clients should remember that it is difficult for their lawyers to respond to unanswered questions. For more information on this and other issues, you are encourged to visit Mr. Cole's website: www.attorneysmasterclass.com.

Judicial Politeness

2008-06-18T07:50:00.004-05:00

Arkansas District Court Judge William R. Wilson, Jr. has written a short and interesting article in the May/June 2008 Issue of the Bencher urging greater civility among lawyers and trial court judges. Specifically, Judge Wilson blames much of the nastiness of opposing counsel on judges that refuse (or take too long) to get involved in discovery disputes.

The best part of the article is a story about a doctor in Little Rock that the judge recalls as particularly civil to patients and staff. the doctor's father had instructed him that 'I can't make you smart but, as long as you live in my house, I can make you polite.' The doctor said that he continued to bend over backwards to be civil to others because "It's not that hard."

The judge strongly advises everyone, not only attorneys and judges, but all professionals to remember to be polite the next time there is a choice between being courteous or becoming a "snapping turtle."

You win some, you lose some.

2008-06-12T14:28:00.003-05:00

The Iowa Supreme Court decided a case the end of May involving Iowa City that highlights issues when cities decide to enact rules that go beyond the requirements of state law.

In the case of Baker v. City of Iowa City and Iowa City Human Rights Commission, an out of state person wanted to hire a property manager for his home in Iowa City. He refused to hire one female candidate because she did not provide references and indicated that she wanted to have her 11 year of son handle the outside maintenance. The woman brought a claim with the city's human rights commission on the basis of "marital status," which is not a protected class under either federal or state anti-discrimination laws.

Mr. Baker file a lawsuit objecting that state law does not allow for employment discrimination claims to be brought against employers with fewer than four employees and that the City did not have the authority to bring a claim against him for "marital status" discrimination. Although Mr. Baker lost at the district court and appellate levels because they found his claims were moot, the Iowa Supreme Court reached the merits of his claims and affirmed in part and reversed in part.

The Court upheld the lower courts in finding that Iowa Code Section 216.19 gives cities the authority to prohibit more types of discrimination than just those identified in the Iowa Civil Rights Act. However, the Court reversed the case on the issue of whether small employers can be cited for discrimination. Specifically, the Court held that cities do not have the authority to pursue discrimination claims against employers with fewer than four employers.

The message here for cities is to make sure there is some colorable authority under state law (or home rule authority) before expanding your anti-discrimination procedures beyond the dictates of the Iowa Code. For more information on this case, see http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080530/05-1833.pdf

Recent Supreme Court Decision Again Expands Retaliation

2008-05-28T07:38:00.004-05:00

On Tuesday the United States Supreme Court issued two decisions that expand the availability of retaliation claims for race and age discrimination. Although neither the Age Discrimination in Employment Act nor Title VII of the Civil Rights Act of 1964 ban retaliation, the majority of justices found that the overall purpose of these laws suggest an intent by Congress to prevent discrimination including retaliation.

Writing for the majority in one of the cases, Justice Breyer cited two prior decisions of the Court as supporting an expansive view of such laws. "We believe it is too late in the day in effect to overturn the holding in that [1969] case," Justice Breyer writes for the seven-justice majority in CBOCS West, Inc. v. Humphries. These decisions as some analysts had predicted that the new makeup of the Court would result in decisions adopting a more restrictive approach to such laws to make it harder for victims of discrimination to sue. Especially suprising for some court watchers was the Justice Alito wrote the majority opinion in the decision expanding the ADEA to include retaliation claims.

For more in depth analysis and information, see an article by Warren Ritchie in the Christian Science Monitor: http://www.csmonitor.com/2008/0528/p11s01-usju.html

Pre-Termination Hearings and You

2008-05-28T07:01:00.003-05:00

The May 27, 2008, Issue of the IMLA News, put out by the International Municipal Lawyers Association, has several articles of interest for municipalities. One case, decided earlier this month by the 9th Circuit, clearly shows that there remains a broad requirement for pre-termination hearings.

In the case of Levine v. City of Alameda, the property manager for the City of Alameda was informed that he was being laid off. Levine asked the City Manager for a pre-termination hearing as he felt his layoff was a pretext. Flint forwarded Levine's request to the head of HR and asked that 'Levine’s due process rights be respected.'

HR subsequently responded to Levine stating that he was not entitled to a pre-termination hearing under his union contract because he was being laid off and not discharged for cause. However, HR offered to meet with Levine to discuss layoff procedures and retirement benefits, and Levine did end up having a short meeting with HR.

After the layoff, Levine brought a Section 1983 action, claiming the City violated his due process rights under the Fourteenth Amendment. The district court ruled for Levine and held that his procedural due process rights were violated as, despite the express language of the union contract, he was entitled to a full evidentiary hearing before a neutral third-party. This was only a pyrrhic victory, however, as the trial court found that all of the defendants were immune from liability.

On appeal, the Ninth Circuit affirmed stating that Levine was a civil servant who had a property interest in continued employment and was entitled to have a hearing before his layoff. Again the union contract's express terms were ignored and Levine was found to be entitled to more than a brief meeting to discuss benefits. What the Ninth Circuit required was for the City to 'give Levine a meaningful opportunity to respond to the layoff decision.' As with the trial court, Levine's victory was in name only as the Ninth Circuit agreed that all of the defendants were immune from liability.

This case illustrates that, regardless of union contracts or city policies, it is important to give eligible employee a 'meaningful opportunity' to respond to the reasons for his/her termination. For more information see:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1818819C499BDA6D88257448005901B8/$file/0615480.pdf?openelement

What types of "families" can cities exclude?

2008-05-21T16:13:00.007-05:00

Last year, the Iowa Supreme Court decided the case of Ames Rental Property Ass'n v. City of Ames, which addressed the issue of what is a "family." Ames, in an effort to prevent groups of Iowa State students from living in residential areas, passed an ordinance restricting the kinds of living arrangements allowed in certain areas of the City.

Specifically, in low density residential areas the City restricted the use of property to buildings "designed for and occupied exclusively by one family." The ordinance defined "family" as: (a) person living alone, or any of the following groups living together as a single nonprofit housekeeping unit and sharing common living, sleeping, cooking, and eating facilities; (b) any number of people related by blood, marriage, adoption, guardianship or other duly-authorized custodial relationship; (c) three unrelated people; or (d) two unrelated people and any children related to either of them.

Under this ordinance, landlords were prohibited from renting housing to more than three unrelated persons. The Ames Rental Property Association (ARPA) sued claiming the ordinance violated equal protection laws, which the lower court dismissed on summary judgment. On appeal, the Supreme Court of Iowa affirmed the district court stating that the U.S. Supreme Court had previously upheld a more restrictive law under the U.S. Constitution, and that the Ames ordinance was also allowed under the Iowa Constitution.

The Iowa Supreme Court was not swayed by ARPA's argument that there was no rational relationship between the ordinance and the City's goals of fostering "a sense of community, sanctity of the family, quiet and peaceful neighborhoods, low population, limited congestion of motor vehicles and controlled transiency." Indeed, the Court cited approving other cases where it was stated that "police power is not confined to the elimination of filth, stench ... [i]t is ample to layout zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."

This decision provides guidance for cities looking to place more restrictive limits on the living arrangements of its citizens and appears to signal that the Iowa Supreme Court will continue to give great deference to municipal decisions based on an exercise of police power.

Workplace Romance

2008-05-15T14:18:00.006-05:00

HR-OneSource (one of Iowa's largest HR firms) has an article in its May 2008 newsletter outlining steps to take when there is office romance in the air. See http://www.hr-onesource.com/articles/May%202008%201_Workplace%20Romance.htm.

Although Jim and Pam from The Office may seem like they are destined to be together, the above article suggests that 80% of workplace romances end. And, when they do, employers have to deal with the fallout. HR-OneSource outlines a number of steps that employers and supervisors can take to make sure they do not end up liable for any work-related claims resulting from a failed office romance.

New Definition of Just Cause

2008-05-14T06:48:00.003-05:00

In the 1960's, Carroll R. Daugherty, issued an arbitration decision outlining what are now known as the seven tests of just cause. For better or worse, arbitrators and judges have been using that definition of just cause over the last forty years. A recent Delaware Supreme Court case recently made an effort to 'clarify' what is meant by "just cause."

Cheswold, Delaware is a small town in the middle of the state with approximately 300 residents. The Police Chief, Robbin Vann, was fired after a public hearing and sued for reinstatement. At trial, the city argued fifteen separate grounds for Mr. Vann's termination, including: threatening the mayor; refusing to meet with city staff and elected officials; and frequently being absent during working hours. The trial court found the Mr. Vann was fired for just cause and he appealed.

The Delaware Supreme Court, in upholding Mr. Vann's termination, stated that "just cause" means a "legally sufficient reason supported by job-related factors that rationally and logically touch upon the employee's competency and ability to perform his duties." Although this definition is more than a little circular, the Court's explanation was actually helpful. Essentially, the holding was, if an employer can point to its manual, SOPs, rules or guidelines--or an individual's job description--and link the termination to a significant violation of one of the above, then the employer has shown "just cause."

This case is a reminder that "just cause" provisions in statutes or employment contracts often require an employer to show more than mere personality conflicts or minor violations of policies. For more information on this case, see Vann v. Town of Cheswold, 2008 WL 516659 (Del.Supr. 2008), or read the May 2008 issue of the Public Safety Labor News Journal.

The Paperless Lawyer

2008-05-07T07:42:00.003-05:00

The May '08 issue of the Nebraska Lawyer has an article on paperless offices written by Rick Jeffries. The experiences of the author were similar to my own when several of my partners and I started working on our paperless office several years ago.

Back in 2001, the municipal attorneys at my firm made the switch to a new computer system (from Windows to Mac--but that's another story) and decided that time was as good as any to begin working toward a paperless office. Within a month or two we were able to get all current cases scanned and organized but it took several years to get all our closed files pulled from storage and scanned.

The hardest part of a paperless system is not the hardware or software, there are a variety of scanners and programs, depending on your needs, to allow you to scan and index files. The most difficult part is actually making sure all documents get scanned and organized. Mr. Jeffries notes in his article that he uses Microsoft OneNote to organize his paperless files. Those of us in my firm that are paperless, however, use no special software. Instead, all mail is scanned and stored on the server upon arrival (and stamped scan on the back) before the attorneys ever see it.

All modern operating systems have built in search functions that, while not as powerful as a dedicated program like OneNote, can find terms in documents. With our scanning system anyone on any computer in the office can now search my files for motions, letters, terms or phrases.

The Dangers of Defamation

2008-04-30T12:37:00.003-05:00

Jacob A. Stein wrote an interesting article in this months Washington Lawyer about several plaintiffs who gravely regretted filing defamation lawsuits. The focus is primarily on Alger Hisss, Oscar Wilde and General MacArthur but it clearly has relevance for Roger Clemens (especially in light of his alleged relationship with Mindy McCready) in his suit against his former trainer.

The ultimate lesson for plaintiff's counsel is to remember--before filing suit--to make certain that your client understands that truth is a defense to defamation. This would have been a good lesson for both Hiss and Wilde as they were each ultimately convicted based on information which came to light during their defamation suits.

Anti-Smoking Policies

2008-04-28T19:44:00.004-05:00

One way for employers to combat rising health insurance prices is to have a healthy work force. As this is much easier said than done, there has been difficult finding a way to effectively (and legally) improve employee health. The New York Times online has a blog post about employers punishing employees for smoking.

As the New York Times author points out, employers can punish employees for smoking and/or reward non-smokers; however, both avenues have their own pitfalls. The Times recently ended its practice of fining smokers who were enrolled in the company's health care plan. For more information see:

www.nytimes.com/2008/04/26/technology/26online.html?scp=1&sq=smoking+employees&st=nyt

Many of these new policies are in response to the recent case of Grusendorf v. City of Oklahoma City. In that lawsuit, the City was sued over its anti-smoking policy, which resulted in a firefighter being terminated after allegedly smoking during his lunch break off site. The City's policy was ultimately upheld, which has emboldened companies to more aggressively pursue smoking policies.

Family Responsibility Discrimination

2008-04-25T10:00:00.003-05:00

A growing number of discrimination claims are based on the inability to juggle the demands of work with a person's responsibilities as a parent. Although parents/caregivers are not a protected class under state or federal law, the EEOC Guidelines state "there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment."

In fact, over the last decade many plaintiffs have brought successful legal actions for termination, failure to promote and other claims based on this type of discrimination; with resulting damage awards against employers as high as $25,000,000.00. For more information I would highly recommend an article by Lynne Anne Anderson and Laura Grosshans published in the January/February 2008 issue of Municipal Lawyer.

2008 Iowa Employment Conference

2008-04-18T08:04:00.004-05:00

On April 23rd at Prairie Meadows Casino, HR-OneSource and others are sponsoring the 2008 Iowa Employment, Training and Benefits Conference. The seminar will be an excellent refresher course on recent changes and trends in employment law effecting Iowa employers.

In addition to yours truly, there will be speakers from the Department of Labor, Director of Veteran's Employment and Training Service, a Committee Chair fo the International Association of Chiefs of Police and Douglas Fulton-an attorney with a significant employment law background.

Come out to the Casino and brush up on rules and regulations effecting the FLSA, FMLA, HSA, HDHP, USERRA, ADA, and another other acronyms and abbreviations you can think of.

City allowed to fire employee for speaking with Mayor.

2008-04-18T07:53:00.006-05:00

David Davis, a firefighter for the city of Phenix City, Alabama was fired in 2006 after calling his Mayor to discuss a proposal to change the probationary period for city firefighters. Davis sued in federal court alleging his constitutional free speech rights were violated.

The City's basis for termination was a policy requiring employees to "notify supervisors" if they intend to speak with someone higher up the food chain. It is important to note that the policy does not prohibit employees from talking to department heads and/or elected officials, it only requires prior notice.

At trial, the judge found that the City offered conflicting reasons for why the policy was adopted; however, it agreed that 'speaking outsdie the chain of command is deleterious on morale and hinders the ability of the City to properly function.'

Ultimately, it was determine that, if employees were only required to give notice before speaking--and were not actually prevented from speaking to superiors--then the policy would be constitutional. It is probable this case will eventually be reviewed by a higher court but it shows that there are actual limits to the free speech rights of municipal employees.

Remember Veteran's Preference

2008-04-10T08:45:00.004-05:00

Prior to the recent ramp up in troop deployment, many municipalities in Iowa had few, if any, employment issues involving veterans. However, nowadays every city and county should be aware of the requirements of Iowa Code 35C as it relates to hiring and firing these employees.

35C.1 states that qualified veterans are entitled to preference in appointment and employment over other equally qualified applicants. And, once a veteran is hired by an Iowa municipality, 35C.6 states that they cannot be removed until after a hearing is held where the employee is shown to be incompetent and/or to have engaged in misconduct.

Municipalities that do not hold removal hearings run a tremendous risk if a veteran objects by filing suit, as some courts have found that the veteran is still considered to be an employee working for the municipality (and still entitled to wages and benefits) until such a hearing is held. In one case alone, it resulted in the veteran receiving an additional year's wages.

Polk County 1 - Iowa Dept. of Revenue 0

2008-04-08T08:58:00.006-05:00

On April 4, 2008, Judge Darrell Goodhue issued a ruling in Polk County District Court striking down portions of Iowa Administrative Code 701-71.1. As unexciting as that sounds, the issues underlying the case are actually fascinating as they involve a battle between the Polk County Assessor and Iowa Department of Revenue ("IDR") over how assessors are to value real property for tax purposes.

In early 2007, the IDR adopted a new rule requiring county assessors to "classify and value property according to its current use and not according to its highest and best use." The Polk County Assessor argued, and the Court agreed, that the Rule was contrary to the Iowa Code which requires assessors to value property according to market value (i.e., highest and best use) and specifically not to assess based on current use.

Prior to the Rule's adoption, and up through the date of trial, the Polk County Assessor attempted to reach an agreement with IDR to remove language from the over-broad Rule to bring it into compliance with Iowa law; however, no agreement was ever reached and the Court was ultimately "inclined to believe [the IDR] has attempted to kill an ant with a shotgun."

The IDR has yet to state publicly if they intend to appeal the decision. If the Judge's decision stands, assessments based on this rule will need to change in the near future.