Mark Landa has been selected by his peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Environmental Law, an honor that he has received each year for more than a decade. In addition, Mark has been named the Best Lawyers' 2014 Des Moines Environmental Law "Lawyer of the Year."
The State finds itself involved in another lawsuit with a disgruntled former employee. This time the plaintiff is former DCI Agent Larry Hedlund. Hedlund sued the Department of Public Safety for wrongful termination alleging that he was terminated after complaining about an Iowa State Patrol trooper driving 84 mph while driving Governor Branstad in April. Allegedly two days after he filed his complaint, he was placed on administrative leave and terminated on July 16. He is demanding at least $1 million in wages and other benefits.
Social media based firings are still making news. In this case, two employees from Bishop Drumm Retirement Center in Johnston were fired for posting "at least one inappropriate photo of a resident on social media". The Des Moines Register is not reporting any lawsuits arising out of this case, so perhaps Bishop Drumm used a well-drafted termination letter.
Iowa Federal District Court Judge Linda Reade ordered the EEOC to pay $4.7 million in attorney fees to the law firms representing CRST. This is just another segment of the EEOC v. CRST saga. You may recall that the EEOC brought a sexual harassment claim against CRST, a trucking company located in Iowa, on behalf of Monika Starke and "other similarly situated female employees". To make a long story short, the "other similarly situated female employees" were basically non-existent requiring CRST to defend an "unreasonable, groundless and frivolous" lawsuit. The cost of defending said lawsuit was $4.7 million, which the EEOC will now have to pay.
A neighboring state becomes the 20th state to legalize medical marijuana. I have previously commented on workplace problems with the legalization of medical marijuana. Apparently, the Illinois law has specific provisions related to the workplace, which should assist employer is determining their obligations when faced with an employee using medical marijuana.
In Dorshkind v. Oak Park Place of Dubuque II, LLC, the Iowa Supreme Court found that terminating an employee after the employee's internal complaint regarding violation of Iowa administration rules violated public policy and constituted a wrongful termination.
Oak Park is an assisted living facility in Dubuque. It is certified as a dementia-specific assisted living program, which requires it to comply with certain provisions of the Iowa Code and Iowa Administration Rules. One such rule requires direct care staff to complete dementia-specific training. In July 2008, the Department of Inspection and Appeals (the department in charge of enforcing the rules and regulations) did an unannounced inspection of the facility. During the inspection, the Dorshkind witnessed what she believed to be certain supervisors falsifying state-mandated training documents for the dementia program.
Another co-worker, Denise Schiltz, was a witness to the forgery and immediately quit her employment with Oak Park. After her separation, she lodged an anonymous complaint with the DIA, which commenced an additional investigation into Oak Park resulting in fines and penalties.
Iowa is an at-will employment state, but certain exceptions exist, including terminations in violation of a stated public policy. To be successful in such a claim the employee must show (1) a clearly defined public policy that protects the employee's activity; (2) termination of the employee undermines the public policy; (3) the employee engaged in the protected activity and it was the reason for termination; and (4) no other overriding business justification for the discharge exists.
Regardless of the dissenting opinion, it is clear that employers must be aware that internal whistle-blowing arising from statute or administrative law (not business practices or policies) may be protected under the public policy exception to the at-will doctrine. As with any termination, documentation is important as well as careful consideration of any protected activity. Before terminating an employee (or taking any adverse action), an employer should now be considering whether the employee has lodged any internal complaints that could be construed as whistle-blowing.
A lot has happened in the employment law world in the last few weeks. Here's a short round-up of some noteworthy items:
The Iowa Supreme Court held that punitive damages are not permitted in claims under the Iowa Civil Rights Act. The decision is not revolutionary and only confirms what the Court has said since the mid-1980s. It will take legislative action for punitive damages to become available under the ICRA.
The Iowa Supreme Court withdrew its December 2012 opinion in Nelson v. James H. Knight, DDS, P.C. for the purpose of issuing a new decision. You might recall that this case garnered national attention around the holiday season. The employer, dentist, fired his dental hygienist because he was attracted to her and his wife was jealous. The Supreme Court did not find this to be discrimination. We will stay tuned to see if their decision has changed under the spot-light.
The United States Supreme Court struck down Federal DOMA. DOMA defined "marriage" for the purpose of many federal laws, including ERISA, as limited to a union between a man and a woman. Because Iowa permits same-sex marriage, changes will be seen with respect to ERISA plans.
The EEOC has settled a number of claims around the country, including Iowa. The EEOC alleged that a meatpacking warehouse in Mason City permitted racially charged graffiti remained on the wall of the men's restroom for months after the company was alerted to the problem. The company will pay $15,000 to three employees and paint the restroom with graffiti-resistant paint among other remedies. The EEOC also settled a claim against a law firm in Washington D.C. that rescinded a job offer to a pregnant employee just two hours after she informed them that she was pregnant. (There's nothing related to Iowa in that post, but I always find it interesting when lawyers make silly mistakes).
On Monday, the Supreme Court issued its decision in Vance v. Ball State University. The issue decided was which employees constitute "supervisors" for the purpose of applying Title VII anti-discrimination laws. I previously discussed the importance of this question.
In a 5-4 decision, the Court decided that an individual is a supervisor only if he or she is empowered by the employer to take tangible employment actions. The court defines "tangible employment action" as the ability "to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision cause a significant change in benefits." Individuals without such authority are not supervisors.
The Court provides a variety of reasons to support its determination, including its easy application and congruence with the reality of the workplace.
The Court's decision does not shift the legal framework present in the 8th Circuit as the definition adopted by the Supreme Court is the one that has historically been applied. This is good news for employers in Iowa.
The Cedar Rapids Gazette reported on a legal settlement reached between Bridgid Ruden, the City of Coralville, the State of Iowa, and Horsfield Construciton Company. Ms. Ruden had been riding her bicycle on a trail and lost control of her bike and crashed after hitting a patch of mud on the trail. She was in a coma, had multiple surgeries, and is unable to continue her career as a nurse practitioner. The basis for Ruden's lawsuit was that the Defendants were negligent in the manner in which the trail was designed, constructed and maintained. Generally, the State of Iowa (Iowa Code 669.14) and Municipalities (Iowa Code 670.4) are immune from tort liability, unless the negligence falls under certain exceptions. In this case, Ms. Ruden presented enough evidence to argue that the design of the trail was negligent in that it was not sloped enough to allow for proper drainage. There are very few cases in Iowa where plaintiffs have successfully argued the design exception.
The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?
A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with.
But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.
Currently, if you wish to file a claim in Iowa Courts, the jurisdictional limit for small claims court is $5,000. That means if the total damages or value you seek is not greater than $5,000 your case is filed in small claims court, and if your damages or value exceed $5,000, your case is filed in district court. Small claims court is a faster, more inexpensive process, but the procedural rules are often more relaxed, and you don't have the ability to conduct significant discovery. Currently, the Iowa Legislature is considering House File 248, which would increase this jurisdictional amount to $10,000. Stay tuned to see the outcome of this legislation.
On Tuesday, the United States Supreme Court granted certiorari in,Sandifer v. U.S. Steel Corp., a case involving compensable time under the FLSA. In the underlying case, a group of steel workers filed suit against their employer, U.S. Steel Corp., for unpaid wages for time spent putting on and taking off safety clothes necessary to perform their jobs. The clothing included, flame retardant pants and jackets, work gloves and boots, a hard hat, safety glasses, ear plugs, and a shood. (A picture of a man modeling the gear is apparently found in the opinion of the underlying case, but I can't seem to find a link!). Other issues were discussed in the case, but the only question that the Supreme Court will answer is "what constitutes 'changing clothes' within the meaning of section 203(o)?"
Generally, "donning and doffing" protective gear, clothing, and uniforms is compensable time under the FLSA. The clothing being put on by the steelworkers most certainly qualifies as protective gear so this case seems open and shut. Right?! The key factor in this case is the terms of the collective bargaining agreement in place. The agreement specifically provided that employees would not be compensated for the time spent putting on their protective clothing. Again this seems like an open and shut issue because typically, employees cannot waive their right to wages under the FLSA. However, Section 203(o) allows for a genuine collective bargaining agreement to exclude time spent "changing clothes" from compensable time.
And this is where the issue arises. What is meant by the term "changing clothes"? Is protective gear "clothes" within the meaning of Section 203(o)? The 7th Circuit believed it to be. The 7th Circuit found that despite the protective nature of the items being put on by the employees, the items were "clothes" and the action of taking the protective gear off and on was properly excluded from compensable time in the collective bargaining.
The Department of Labor issued an opinion on this matter in mid-2010. It determined that protective gear does not qualify as "clothes" under Section 203(o). The only circuit that seems to agree with the DOL is the 9th Circuit, with all other Circuits that have passed on the issue siding with the 7th Circuit. The 8th Circuit, which Iowa is a part of, has not decided the issue.
Most people are generally familiar with the legal concept of eminent domain, whereby the government can take private property for public use, upon the payment of just compensation to the property owner. It is found in the Fifth Amendment to the U.S. Constitution, and similarly found in the Iowa Constitution at Article 1, Section 18. The Iowa Legislature has provided that the power of eminent domain to be enjoyed by state agencies and local governing bodies shall be as delegated by legislative act. In the Iowa Supreme Court case of East Oaks Development, Inc. v. Iowa Department of Transportation ("DOT"), 603 N.W.2d 566, (Iowa 1999), the Court determined that the Legislature has not extended this power of eminent domain for development of recreational trials, stating: "...the DOT has no general eminent domain authority for establishing recreational trails or bikeways." Ultimately, the Court determined that the DOT could exercise eminent domain to re-develop a road by placing a bike trail next to it, since such placement of the trail helped improve traffic on the road. The takeaway from the East Oaks case, however, is that the State does not have eminent domain power for the creation of recreational trails.