Iowa Public Employers: Open Meeting Violation Becoming New Wrongful Termination

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Public employers have it tough.  Government resentment is at an all time high, expectations are up, and budgets are down.  Add to that the growing protections to public employees under state and federal law, and this can make HR decisions and issues a nightmare.

The Iowa Supreme Court ruled today on a case concerning what constitutes an “open meetingPublic Notices” under Iowa law.  The thing is, the lawsuit challenging the meeting was brought by employees terminated under a reorganization plan.

Open Meetings Violation a New Employment Claim?

This is an important case for public employers because a core holding was:

Because we conclude agency principles are relevant to determining whether a gathering satisfies the statutory definition of meeting in section 21.2(2), we conclude the legal equivalent of an in-person gathering of a majority of the members of a public body takes place whenever a majority of the members of a governmental body meet, whether each member attends personally or through an agent.

In this case, County Supervisors met separately and individually with an Administrator (having “serial meetings,” which have been held lawful and not an open meeting violation), but the Court found that the Administrator acted as an “agent” for absent Supervisors and served as a “conduit” for their deliberations by communicating their various positions and concerns.  As a result the Court found that this constituted an “open meeting” violation.  So there’s this Open Meetings reminder.

However, the subtext is clear.  This case may not have made much of a splash if the Supervisors were addressing a routine piece of public business in their meetings.    However, the Supervisors’ meetings involved a reorganization plan that terminated employees.  It was six of the terminated employees who filed the lawsuit.

A broader summary and link to the case is below:

Former Warren County employees brought an action against the county and its board of supervisors alleging a violation of the open meetings law contained in chapter 21 of the Iowa Code. The district court dismissed the action, finding the board members’ activities did not constitute a “meeting” as defined in Iowa Code section 21.2(2) (2013). In reaching its conclusion, the district court found that although the board members deliberated concerning matters within the scope of their policy-making duties, a majority of the supervisors never deliberated at a meeting within the meaning of section 21.2(2). On appeal, we conclude the definition of meeting in section 21.2(2) extends to all in-person gatherings at which there is deliberation upon any matter within the scope of the policy-making duties of a governmental body by a majority of its members, including in-person gatherings attended by a majority of the members by virtue of an agent or a proxy. Therefore, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

4-3 Dec., Wiggins for Court
Waterman, Mansfield, and Zager dissent

Hutchison, et al. v. Warren County Board of Supervisors, et al.: Iowa Supreme Court Opinion

New Iowa Law Allows Records of Criminal Aquittals and Dimissals to Be Expunged

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gw906-background_check     As an employment attorney, I am frequently asked whether past criminal charges can be expunged under Iowa law.  For good reason, too — most employers have some form of screening in place to determine an applicant’s criminal history.

Until recently, Iowa law only permitted expungement in juvenile delinquency cases; certain PAULA (possession of alcohol under the legal age) cases, public intoxication and consumption, and deferred judgments.

On January 1, new Iowa Code Section 901C.1 went into effect, which allows expungement of criminal court records if the charges were dismissed or the defendant was acquitted. The expungement process for these new dismissals and acquittals will be the same as the existing process under Section 907.1 of the Iowa Code.

If a court record is expunged, the clerk of court stores the court records so the public cannot access it. For physical records, the clerk stores them in a secure area; for electronic records, the clerk creates a separate database exempt from public access.

The new law applies to records of a criminal case where acquittal was entered for all criminal charges or where all criminal charges were dismissed (hence, it doesn’t apply to a defendant who beats only some of the charges and pleads or is convicted of others).  The records are not automatically expunged – only a court order can do that.  Either the defendant or the prosecutor can file the application, or the Court can order expungement on its own motion, but only if all costs, fees, and financial obligations are paid.

While the statute requires a minimum of 180 days pass from the entry of acquittal or dismissal before expungement, this can be waived on a showing of good cause.

Finally, the law applies retroactively to any criminal case that could otherwise be expunged.  Now I just need to figure out how to contact all those people who asked me this question through the years …

Ban the Box Bill Introduced in Iowa Senate (SF 84)

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On Tuesday, January 19, the Iowa Senate’s labor committee to “ban the box,” which prohibits from job applications from asking whether an applicant has ever been convicted of a crime.  The bill would permit asking an applicant to provide this information, but not until after the employer determines the applicant is otherwise qualified for the job, selected for an interview, or a job is offered.

A three-member panel of the Senate Judiciary Committee discussed the bill Tuesday but took no action. They plan to meet soon to decide whether to advance the legislation to a full committee.

The bill was introduced last session but failed to get out of committee.  It is clear the box, to the extent it provides a “no brainer” excuse for an employer to trash a job application, needs to be reconsidered. I’m not sure where I fall on this one, though.  Perhaps with the Governor’s recent emphasis on criminal justice reform (which seems to be picking up at the national level, as well), it may get somewhere this time around.

Iowa Supreme Court Nixes BROAD Race-Based Class Action Against Entire State of Iowa

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Friday, July 18 – Iowa Supreme CourtSupremes

In a case that was originally brought in October 2007, Plaintiffs, fourteen African-Americans, brought a class action suit against the State, including thirty-seven different executive branch departments, under the Federal Civil Rights Act and the Iowa Civil Rights Act.

In their Petition, Plaintiffs alleged that the State unlawfully and systematically discriminates against African Americans in employment. The trial court entered judgment in favor of the State because, even though the statistical evidence showed that African-Americans did not fare as well in certain pre-screening, and interview activities as did their white counterparts, the trial court found that the Plaintiffs did not meet their burden to prove discrimination.

In an 83 page opinion that reads like a social science dissertation at times, the Supreme Court affirmed the decision of the trial court, holding that Plaintiffs did not meet their burden of establishing that the underlying documents did not provide sufficient information to allow employment practices to be separated for meaningful statistical analysis, and therefore, Defendant State of Iowa was entitled to summary judgment under the Iowa Civil Rights Act.  Decision at the link, below.

http://j.st/ZTqA

Iowa Gets “D” in Family Friendly Employment Law Survey

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Iowa Welcome SignIf you’re from our great state, don’t get too upset:  Seventeen states failed.

California, not unsurprisingly, came in first, followed by Connecticut, and Hawaii for the top three slots.

The survey (at the link) was performed by the National Partnership of Women & Families.  The group is a Washington, D.C., 501(c)(3) who claims as its charge to “promote fairness in the workplace, reproductive health and rights, access to quality, affordable health care, and policies that help women and men meet the dual demands of their jobs and families.”

The survey seems mostly built on analysis of the text of state laws, based on review of laws that meet the following criteria:

 

  1. State laws that exceed the FMLA in guaranteeing job protection or pay to women and men who take a leave of absence from their job to care for a new child (“parental” leave) or a spouse or partner disabled by pregnancy (“family” leave)
  2. State laws that provide birth mothers a period of disability leave to prepare for and recover from pregnancy and childbirth (“medical leave” or “maternity leave”)
  3. State laws that require employer-provided sick, vacation or personal leave to be available for workers to care for a new child or an ill spouse or partner (“flexible use of sick time”)
  4. State laws that exceed federal standards in guaranteeing pregnant women the right to reasonable accommodations at work when pregnancy-related physical limitations necessitate such accommodations (“reasonable accommodations for pregnant workers”)
  5. State laws that exceed federal standards in enabling new mothers to continue to provide breast milk to a new baby after returning to work (“workplace rights for nursing mothers”)

Iowa received kudos because we grant greater access to pregnancy disability leave under Iowa’s anti-discrimination law than under federal law.  This is true because Iowa law prohibits employers with four or more employees from denying a woman’s request for up to eight weeks of leave to address pregnancy, childbirth, and related medical disabilities.  In Iowa, the requested leave must be granted regardless of a woman’s tenure on the job (whereas the FMLA requires a certain level of months of service and hours worked) or the number of hours worked.

Further, because same sex marriage is legal, same sex couples in Iowa have access to FMLA leave.

Given that 17 states failed, maybe we should be happy we even “passed”?

Donald Sterling and Clippers Sued for Wage/Hour Violations

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Sterling PictureDonald Sterling (well, his family trust) has been sued.

Shocking, right?

This time, it’s a class action brought by lead Plaintiff Frank Cooper, and he’s aiming at LAC Basketball Club, Inc. (Clippers) and The Sterling Family Trust claiming they misclassified Clippers employees as unpaid interns to short them for wages.

Take a look at the Class action Complaint here: FLSA Class Action

Lead Plaintiff Cooper claims he worked as a fan relations intern in 2012 and that the franchise and Sterling Trust misclassify employees as interns to avoid paying wages.  In fact, the Complaint alleges “Plaintiff’s unpaid work for defendants is part of a broader trend where employees are being misclassified as unpaid ‘interns’ in an effort by employers to avoid paying wages as required by state laws and FLSA. … The result is that while certain employers save wage expenses, the economy as a whole suffers from fewer paid job opportunities. Moreover, the economic and moral wellbeing of our nation is compromised due to the further marginalization of workers who cannot provide free services but rather must accept low wage employment in other sectors, thus foreclosing certain employment options, and indeed entire fields, from the already vulnerable.”

Well, at least that’s one side of the story …

Court Finds Hostile Work Environment Claims against Collection Agency Past Due, Insufficient Funds

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CBE’s old, but well known, logo.

If you live in our great state, you may have heard of CBE – Credit Bureau Enterprises, Inc., a “leading” (according to them) collection agency headquartered in the state of Iowa.

It’s probably tough to work at a collection agency.  Rachel Clay, an African-american woman who started at CBE in 2005 as a front line collector, claimed it was not only tough, but illegally hostile.  In fact, Ms. Clay filed a lawsuit against CBE on March 1, 2011, claiming race discrimination, hostile work environment, retaliation, and constructive discharge.  (This was after she had resigned from CBE for personal reasons on February 5, 2008).

In support of her hostile work environment claim, Clay cited the typical laundry list of horribles, including twelve that were timely (more about that below):

• On March 12, 2007, [her] Supervisor … said that she would deny Clay’s request to make up time unless Clay completed a form that white employees had not been required to complete.
• On March 15, 2007, [her] Manager … disciplined Clay for a dress code violation. Similarly dressed white employees were not disciplined.
• At the end of March 2007, Clay complained to [her Supervisor] that her white co-workers received praise for their performance but Clay did not receive similar praise.
• On April 6, 2007, [her Supervisor] improperly altered Clay’s time log to reflect that Clay had returned late from lunch.
• In late April 2007, a co-worker told Clay, “Congratulations! Today is the day Abraham Lincoln freed the slaves. You should be happy.” [Her Manager] overheard the comment but took no action.
. . . and so on

While the details range from the benign to asinine, the trial court noted that CBE had recorded no discipline against Clay for any of these incidents.

Complaints Past Due

Above were some of the timely brought complaints.  The trial court noted that Clay had brought a number of her grievances too late, because they were outside of the applicable four-year statute of limitations.  Included were incidences where Clay alleged her white co-workers and supervisors made derogatory comments to her and other African-american employees, including:

(1) . . . in May 2006, [a] Supervisor . . . called [an] African-American Supervisor . . . a “black bitch” during an argument; (2) that [a] Supervisor . . . once told [an African-American Supervisor] to “let up on the white girls”; (3) that [a] Supervisor . . . overheard Clay’s co-worker call her a “black bitch” during a dispute, but did not report it; (4) that a Supervisor . . . referred to Clay’s hair as “nappy”; and (5) that [Clay] had knowledge that Supervisors . . . commented that “black people had nappy hair,” “black people live in the hood,” and “black people get food stamps.”

Even considering this complaints as timely, the trial court found Clay could not sustain a claim against CBE because they simply were not sufficient evidence of a hostile work environment. 

Court Finds all Plaintiff’s Claims Have Insufficient Fundsnsf-cheque

In this Friday, June 6, decision, the Eighth Circuit Court of Appeals confirmed the reasoning of the trial court.  Specifically, the Court recited the well-known precept that the Plaintiff was obligated to demonstrate the harassment affected a “term, condition, or privilege of employment.”  To do so, the harassment must have been sufficiently “severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The Court found, simply, that Clay had insufficient proof.  As to the twelve incidents that occurred within the required timeframe, they were not sufficiently severe or pervasive to show that Clay’s work environment was offensive.  In the words of the Circuit Judges, they were “infrequent and involved low levels of severity.”

Further, Clay did not allege the environment was physically threatening, nor that the conduct was humiliating or interfered with her work.

Finally, the Court noted Clay did not support the allegations with sufficient evidence, and instead relied mostly on speculation and conjecture to show that the alleged harassment was race based.

 

Polk County, Iowa, Employment Verdicts Recently Released

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21 Verdicts Released

The Clerk’s office of the Iowa District Court in and for Polk County recently released statistics sheets for the past 7 years on civil verdicts through the end of 2013.  This included the verdicts for all manncourtroomer of civil claims, including property damage, motor vehicle, and so on.  For our purpose, the most interesting of these was the employment claims, which can be found at this link: EMPLOYMENT CLAIM

Defendants Win More Often, But Plaintiffs Win Big When they Win

A quick review through the basic statistics for the past seven years (it’s only 22 pages), show that in Polk County, Plaintiffs won only 7 out of the 21 cases reported — good news, I think, for employers.  However, when they did win, the verdicts could be big – nearly $1 million in one case.

If employment claims are not on your radar in Polk County, they sure should be.

Mystique Casino Shows Good Drug Test Policy Pays Dividends

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Good Policies Make for Good Outcomes

Flickr via Creative Commons

Flickr via Creative Commons

After an employee with long history of taking prescription drugs refused to take employer-required drug test after injury, he was terminated. The case went to a jury, who awarded a verdict in the employee’s favor.  On appeal, Iowa’s Court of Appeals reversed the jury’s verdict, finding that the the employee’s claim should not have survived to be submitted to the jury when Mystique had a well-defined policy warranting the employee’s termination for refusing to submit to the drug test.

I. Background

After he refused to submit to a drug test and was fired, Phillip Brown sued his employer, Mystique Casino (“Mystique”) under the theory that he was a person with a disability under the provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), and that he had been improperly terminated from his employment.

In 1980 Mr. Brown injured his left leg on an oil rig. The injury caused “drop foot,” which prevented him from lifting his left foot up and necessitated a brace on his left leg, and necessitated medications, including narcotic analgesics, for nearly thirty years. Mr. Brown’s work history showed that this did not historically affect his ability to secure employment as a mechanic, welder, and fabricator.

Mr. Brown’s employment relationship with Mystique began in October 1999, when he was hired as a maintenance laborer, which required that Brown operate power tools, drive vehicles, and use other powered equipment.

In 2006, a supervisor was made aware Brown was taking hydrocodone while on the job for his pain. The supervisor informed Brown that he could not operate power tools or drive vehicles off the company premises while on this medication.

Brown informed the supervisor about four months later that he was off the medication, and he was released to normal duties by the supervisor. Despite his representations to Mystique, Brown continued to take his prescription painkillers while at work.

II. Mystique Discovers Extent of Opiate Use

In February 2010 Brown requested and was granted time off because of problems with his left leg. After four weeks off, he returned to his job, but Mystique insisted that Brown furnish a physician’s release.

In the letter Brown provided, his physician detailed Brown’s prescriptions for hydrocodone, oxycodone, and hydromorphone, but it also identified other non-opiate medications that were available for pain control.

Mystique told Brown he could not return to the job until he was off his narcotic medications because it believed the opiates were for temporary use only. At Brown’s physician’s suggestion, Brown and Mystique arrived at a compromise prohibiting Brown from bringing his narcotic pain medication onto the casino property, but permitting him to use them while away from the work site. Under the terms of this agreement, Brown returned to work on May 27, 2010.

III. The Termination and Brown’s Claim

On June 10, 2010, Brown cut his finger at work, reported it to the shift supervisor, and left work in a hurry and without showing the injury to the company EMT. When Brown reported for work the following day, his immediate supervisor instructed Brown to show the injury to the company EMT, who decided Brown needed to go to a nearby hospital to determine if stitches were needed.

At the hospital, Brown was required to submit to a drug test because Mystique’s drug testing policy required it in the event of an accident resulting in injury. Brown refused to submit to the test. While his supervisor and medical personnel at the hospital assured Brown the test was to check only for illegal substances Brown still refused.

Mystique’s policy provided that refusal was deemed the same as a positive test, and Mystique terminated Brown’s employment. Brown filed a lawsuit under the ADA, claiming that Mystique terminated him based on his disability, and Mystique responded that Brown was terminated for violating the company’s drug and alcohol policy, not because of the disability.

IV. Jury Awards Damages, Finds ADA Violation

After hearing the evidence, the jury determined that Brown’s impairment was a “motivating factor” in Mystique’s decision to terminate him, and awarded Brown $75,000 in back pay and $60,000 in compensatory damages, and a later award for attorney fees in the amount of $18,865 was entered.

Some deft lawyering by Mystique resulted in an appeal, and the result of the appeal provides some teaching moments for employers when thinking about ADA litigation and compliance issues.

V. The ADA “Motivating Factor” Standard and Teaching Moment

For a Plaintiff to establish a claim of disability discrimination, the Plaintiff must prove: (1) (1) he had a disability under the ADA, (2) he was qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered an adverse employment action because of his disability.

Under the third factor cited above, a Plaintiff must show the employee’s disability was a “motivating factor” in the employer’s decision to take an adverse employment action.

Unfortunately for Brown, but fortunate for employers, is that the ADA permits employers to prohibit drug-related misconduct in the workplace. Further, the ADA does not prohibit employers from testing for illegal drugs, or making employment decisions based on drug test results.

Under Mystique Casino’s drug and alcohol policy, it was able to test when Brown had an accident at work. While Brown claimed his employer’s request that he take a drug test was unreasonable, Mystique showed that it had a policy. The policy required Brown to submit to a drug test, and the policy provided that failure to submit was equivalent to a positive drug test. Therefore, the Court determined that the jury should not have decided the case because Brown failed to establish that he was entitled to relief.

Mystique prevailed in this case, despite the jury’s award, because it had a policy in place, it applied that policy consistently, and the policy provided disciplinary results for failure to submit to a drug test. While not all policy provisions can be reverse engineered from good results for employers in litigation, Mystique’s case provides an excellent reminder to check to make sure your policies provide for not only legal, but sensible, predictable outcomes.

Alcohol in the Workplace – What if Your Employee Has an Alcohol Problem?

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Creative Commons / Chris Cotterman

Creative Commons / Chris Cotterman

Jonathan Blazek has a problem.

This isn’t to say he didn’t already have problems.  One was his drinking.

The other was getting caught drinking 21 ounces of whiskey during a shift as a snowplow driver.  That one got him terminated.

His new problem is that yesterday, October 9, a federal Court in Ohio tossed out his “alcohol discrimination” (as a disability) claim against his employer, the City of Lakewood.  The Lakewood Patch in Ohio reports that a federal judge granted the City’s Motion to Dismiss the case, finding that Mr. Blazek wasn’t terminated for his alcoholism, but for drinking on the job.

This was after a 23 year stint of employment which had brought him up to a $59,000 yearly salary.

Maybe you are not jaded like me.  Maybe you are surprised an employee would claim alcoholism is a disability.

But that’s just it – they do.

Because it is.  Just ask the United States EEOC.

Let this one serve as a reminder.  Alcoholism, like extreme allergies, depression, anxiety, and a list of other ailments that may surprise you, qualifies as a disability under the ADA.

While you can’t terminate your employee for being an alcoholic, you can terminate for drinking on the job.  Remember, it’s ability to perform the job functions that matters.