Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

On January 27, the Iowa House passed HF 681, known as the "Iowa Worker Adjustment Retraining and Notification Act".   

There is already a Federal WARN Act, which requires most employers with 100 or more employees to provide at least 60 days notice to their employees of a mass layoff or plant shutdown.  Failure to file the WARN Act requirements can result in liability for back pay and benefits for each affected employee, for the time of the violation, up to 60 days.

The proposed Iowa law is more stringent than the federal law is some respects, but more lenient in others.    It is more stringent in that is applies to employers with 25 or more employees.   It is more lenient, however, in that is requires only 30 days notice of a mass layoff or shutdown.   In addition, the penalties under the Iowa law are limited to $100 per day for each day of the violation.   There is no private right of action; the law is enforced by the Department of Work Force Development.

The bill has not passed the Iowa Senate, nor has the Governor stated publicly whether he will sign it.   Organized labor is strongly in favor of the bill.  However, given the difficult economic conditions that still exist in the State, and the Governor up for a tough re-election fight, it remains uncertain whether this bill will become law.  We will keep you posted. 

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On January 21, the U.S. Court of Appeals for the Eighth Circuit issued a decision that is likely to expand the frontiers of sex discrimination litigation in this circuit (which covers Arkansas, Missouri, Iowa, Minnesota, Nebraska, and North and South Dakota).   In Lewis v. Heartland Inns of America, a female plaintiff who had masculine characteristics and mannerisms was terminated from her job as a motel night auditor.   The trial court granted summary judgment to the employer on the plaintiff's sex discrimination claim because the plaintiff presented no evidence she was treated less favorably than similarly situated males, or that the employer was biased against women in favor of men.  The court of appeals reversed, and held that a decision maker's remarks  to the effect that female employees should be "pretty" and feminine was sufficient evidence to generate a jury question whether the employer was motivated by unlawful sex discrimination, even in the absence of evidence concerning the treatment of male employees. 

With this decision, the Eighth Circuit joined the First, Second, Sixth, and Ninth Circuits in holding that an employer’s expectation that an employee should act consistent with a preferred sex stereotype may constitute sex discrimination.

The plaintiff in Lewis worked part time at the front desk at various locations of the Heartland Inn.  She generally had worked the overnight shift. For two years Lewis’ managers thought she was a good employee and requested she receive pay raises. One of her managers testified that Lewis “made a good impression” , and another that she “did her job well.”   There was a record of at least one customer comment that praised Lewis.   In December 2006, Lewis’ manager requested permission from Heartland’s Director of Operations to offer Lewis a full time night auditor position on the 3 p.m. to 11 p.m. shift.   The Director of Operations, who had never seen Lewis, granted the permission.

After seeing Lewis, the Director of Operations had second thoughts. She told Lewis’ manager that Lewis was not a “good fit” for the front desk. She apparently lacked the “Midwestern girl look”. The Director of Operations, who was also female, had been heard to boast about the appearance of women staff members, and indicated that Heartland staff should be “pretty.” 

Lewis herself described her appearance as “slightly more masculine.” She preferred to wear loose fitting clothing, including men’s button down shirts and slacks. She avoided makeup and wore her hair short. Lewis has been mistaken for a male, and referred to as “tomboyish”. 

The Director of Operations ordered Lewis’ manager to move her back to the overnight shift.   About the same time, a new policy was instituted that required any employee hired for a front desk position to go through a second interview.   Heartland purchased video equipment so that the Director of Operations could view a candidate before extending an offer.   Even though Lewis had been working the 3-11 shift for a month, the Director of Operations insisted she go through a second interview. When Lewis protested and said it was illegal, she was terminated.

The district court granted summary judgment to Heartland because Lewis produced no evidence that she was treated differently than similarly situated male employees.   The Court of Appeals held, however, that the district court was wrong to require the plaintiff to present evidence concerning male employees, noting that “comparative evidences is certainly not the exclusive means by which a plaintiff may establish an inference of discrimination.”   

The critical issue, the court reasoned, is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”   According to the court, the statements that front desk personnel should be  “pretty”,  and that Lewis lacked the “Midwestern girl look” was sufficient to generate a jury question whether her gender played a role in the decision.  In other words, it was not necessary to offer evidence that male employees were subject to a different standard because a reasonable fact finder could find that the terms by their nature apply only to women.  

While it is not clear the Lewis decision will result in a flood of new lawsuits, it nonetheless expands the boundaries for potential sex discrimination claims in a way that will make it more difficult for employers to defend.   It is important to note that stereotypical attitudes concerning how women should behave was already relevant in such cases.  However,  a plaintiff still had to show that, as a result of such attitudes, female employees were at a disadvantage compared to males.   Now, it seems, a female employee can prove unlawful sex discrimination by showing she was disadvantaged compared to other females who acted more feminine than she.  Likewise, a male employee can simply show that male employees who were more masculine were favored over those who exhibited feminine characteristics.    The difficulty is that, unlike gender itself, which is an objectively verifiable fact, many notions of femininity and masculinity are inherently subjective.  

The Lewis case is one of those decisions where bad facts make bad law.   Based upon the record presented in the court's opinion, there is little doubt Ms. Lewis was treated poorly for reasons unrelated to her performance.   Her appearance certainly put her at a disadvantage compared to other female employees.   But there simply was no basis to conclude she was at a disadvantage compared to similarly situated males.

For other perspectives on this case, see the following:

"Of Slacks and Sex Discrimination", in Work Matters Blog.

"Eighth Circuit Issues Interesting Appearance/Sex Stereotyping Case", in Workplace Prof Blog.

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A recent study by University of Iowa economist John Solow found little evidence of racial discrimination in head coach hiring by National Football League Teams.   In 2003, the NFL instituted the "Rooney Rule" to try and increase the number of racial minorities who served as head coaches.  The rule required teams to interview minority candidates for head coaching and senior football operations opportunities.   Despite the league's effort to increase diversity in the head coaching ranks, some are critical that six years after its implementation, only six of the 32 NFL teams have minority coaches.  Seventy five percent of NFL players are minorities.

Nonetheless, Dr. Solow concluded that race is not an important factor in promotion decisions for head coaches.   Solow studied head coach hiring from 1970-2008, and noted that most vacancies were filled from the ranks of offensive or defensive coordinator positions.   He found that success as a coordinator was the most important factor in moving to the head coaching ranks.   According to Solow, the most effective means for the NFL to increase the number of minority head coaches would be to increase the number of minorities in the lower level coaching positions from which head coaches are ultimately drawn.   Solow contends that applying the Rooney Rule to these other coaching positions would be the best way to increase the number of minorities in the head coaching ranks.

"If the league introduced African-American coaches into the front of the pipeline instead of at the end, more of those coaches would have the experience teams are looking for and be more likely to be hired as head coaches," Solow said.

Solow's statement could be applied to virtually any workplace.  Some might call it simplistic, but it makes sense that providing people opportunities at the entry level is key to developing diversity throughout an organization.    Despite those who criticize the NFL because of the low number of minority head coaches, there are few organizations today as color blind as professional sports leagues.  There is virtually no other industry where minorities have been as successful.  If other workplaces were as color blind as the NFL, we wouldn't be so worried about diversity.

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Several commentators have identified the proliferation of social networking as one of most important new developments/challenges/obstacles that employers faced in 2009, and will continue to deal with in the foreseeable future.

Despite all the discussion in blogs and other places about this phenomenon, for those who do not spend lots of time in this arena,  there is not a clear understanding of what social networking really is, and what are the benefits and potential drawbacks for employers.

There are hundreds of sites and posts containing information and opinions about social networking.  But, for those who want to get started with some basic information, I commend you to the following sites:

First, is "Social Networking Policies: Best Practices for Companies", published in The Metropolitan Corporate Counsel.   This article answers basic questions such as, "what is social networking?", what are the benefits and risks?; are there any best practices? 

Second, is "The 3 Principles of Social Media: How to be a good online citizen, in the Delaware Employment Law Blog.   This post provides a good discussion of the purposes of social media and how it can be used effectively.

Third, is an overview of recent Federal Trade Commission regulations concerning the use of endorsement in advertising, and how those regulations could cause potential liability for companies whose employees use social networking.

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It seems common sense that a lawyer or witness would not answer a ringing cell phone in the middle of a court proceeding, but it happens enough that judges now have to have rules about it.

Molly DiBianca at Delaware Employment Law Blog takes on the entitlement mentality of some  employees who think they should be allowed to do personal business on company time and have complete privacy over personal e-mails sent on the company Blackberry. 

For a low cost perk that  will make your employees happy in 2010, HR Daily advisor recommends a flexible scheduling program. 

Guess who said it:

I always figured that I would [eventually practice]. But it was midway through law school when I thought I wanted to do something different before practicing. I wanted to try something new because I didn’t want to have any regrets.

Answer: former Texas Tech football coach Mike Leach, J.D., in an interview with "BItter Lawyer", on why he went into coaching instead of law practice.   Leach's lawyer has apparently promised to file a lawsuit against the University "soon" over his termination. 

Daniel Schwartz of Connecticut Employment Law Blog notes the difficulty of accurately predicting what will happen in the year ahead; he does go out on a limb with this one though: "We're not making contact with aliens."  Some days I'm not so sure.   

Speaking of predictions (and football), here's a couple:  Iowa State 20, Minnesota 14 in the Insight Bowl.  In the Orange Bowl, Iowa 24, Georgia Tech 21.  Go Cyclones and Hawks!

Happy New Year--see you in 2010!

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"Is Summary Judgment in Employment Cases a Myth"?  So ask attorneys Teresa Ride Bult and Kate Summers in an excellent article published last month in Law 360. 

The authors contend it is becoming more difficult for employers to win on summary judgment, particularly in state court.   Nonetheless, they believe the benefits of filing a summary judgment still outweigh the cost.  The work that goes into a summary judgment will have to be done anyway as part of trial preparation.  Even if all claims are not dismissed, summary judgment can weed out some of the weaker claims, making the case simpler to try.  Finally, a motion for summary judgment forces plaintiffs to tip their hand about their theory of the case and the evidence they rely upon. 

I agree that the summary judgment is an important weapon in the defense lawyer's arsenal in an employment case.   We recently wrote about the chances of an employer winning at trial--and the statistics were not heartening.   On the other hand, a study of the federal courts published last year shows that summary judgment is granted to defendants in discrimination cases more than in any other type of civil case in the federal system.  Locally, anecdotal evidence suggests that summary judgments are granted in a very high percentage of cases in federal court s in Iowa.   The Eighth Circuit also has a reputation for being very "defendant friendly" in employment cases.   Almost all of the employment cases the Eighth Circuit decides are appeals of summary judgments, and most of the time the trial court's ruling is affirmed.  

Of course, it is a different story altogether in State Court in Iowa.   An employer's motion for summary judgment in State Court is denied more often than not.  So much so that many plaintiff's lawyers assert claims only under the Iowa Civil Rights Act so as to avoid having the case removed to federal court.  I attribute the difference in outcome to a couple of factors.  First, state court judges, particularly those in more rural areas, are not as familiar  with employment discrimination law.   Second, state court judges have less access to law clerks compared to their federal counterparts, and it is thus much more difficult to digest factually complex motions for summary judgment and conduct the intense legal research that is often required.   My cynical side says that summary judgments are sometimes denied because judges know the case is likely to be settled anyway, and it is not likely to ever reach the desk of an appellate court.

So, should employers file a motion for summary judgment in employment cases?  The following statement of attorneys Bult and Summers is a fairly good summary of my opinion on the subject:

Employment litigation can sometimes feel like pure, unadulterated blackmail, and the bleak news presented in this article about the state of summary judgment dismissals provides only adds to the arsenal in the war against employers.

But the reality is in employment litigation, a good offense is the best defense.

An employer who has proper policies and procedures in place, makes reasoned and fair decisions, and who makes significant efforts to follow the law will be a much better position to defend against employment litigation and will have a much better shot at being “that case” that even a state court judge will dismiss on summary judgment.

While it is true that even frivolous lawsuits will make it to court, an employer must then analyze how to contain its costs and minimize its risks.

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Update-January 6, 2010:  For information on how employee handbooks, and particularly safety plans, can contribute to lower insurance costs, see Lara Utter's recent post in Iowa Biz.

There is no federal or Iowa law that requires an employer to have a handbook--but most of us do anyway.   While handbooks can be quite useful for communicating information and expectations to employees, a poorly drafted or conceived one can create more trouble than it solves.   Handbooks are often updated to comply with new laws and regulations, but seldom do employers review handbooks with the idea of removing information or making them simpler.  Sometimes, no one in the organization knows where a particular rule or policy came from.  It simply stays in the handbook year after year because...well, because it's always been there.  

A good resolution for 2010 is to review your handbook with at least some of the following in mind:

1.  Just because another company had a particular rule, policy, or procedure does not mean your company should;

2.  Do you really want a detailed progressive discipline procedure? Often, the only time anyone reads this is after they have been disciplined or terminated, and it turns out it wasn't followed;

3.  Make sure the "at-will" disclaimer is in a prominent place, but don't let it lull into thinking you can safely terminate an employee for any reason or no reason at all;

4.  It is important to communicate that you are an equal opportunity employer and do not discriminate; but don't try to paraphrase all the EEO laws in your handbook.  You might get it wrong, or make promises that get you in to trouble later (e.g., "we always accommodate employees with disabilities"). 

5.  Does your handbook adequately communicate your leave policies?  You must set forth clearly the employee's rights and responsibilities under the Family and Medical Leave Act;

6.  Do you have a policy on social networking?  Do you need one?  What are you trying to accomplish with a social networking policy?

7.  Does your handbook comply with the National Labor Relations Act? This is commonly overlooked, because most private employers do not have unions.   However, the NLRA applies to employers regardless whether its employees are organized.   The following policies may potentially violate the NLRA if they are deemed to infringe on an employee's rights to engage in protected, concerted activity:

• prohibiting the use of e-mail for "non-business" communications;
• prohibiting the wearing of pins or decals;
• requiring management approval before posting information on bulletin boards;
• statements to the effect that information about wages or compensation is strictly confidential and may not be disclosed to other employees;

8.  Does your handbook contain information about classifications under the Fair Labor Standards Act?  Are the classifications accurate?

9.  Does your handbook provide easy to understand information about who employees should talk to if they have a complaint about harassment?

10.  What is your policy concerning employer issued mobile phones and smart phones?  Do you allow for personal use? Do you expect employees to answer calls or e-mails after hours, and if so, are they compensated for that time? 

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This is the time of year for reflection--when we look back on what happened during the past year, and look ahead to the coming year.  There are many commentaries and opinions on what was good and bad about 2009, but there is no doubt it was an eventful year for those of us in the labor and employment law world.    In this post we give a month-by-month account of the significant employment law events of 2009:

January:   To usher in the new year, on January 1, the ADA Amendments Act became effective.  On January 26, the U.S. Supreme Court issued a ruling in Crawford v. Metro Metro Government of Nashville, which held that an employee who answered questions as part of an internal harassmenti nvestigation was protected from retaliation under Title VII's "opposition" clause.  On January 29,  President Obama signed into law the Lilly Ledbetter Fair Pay Act.  The Ledbetter Act was the first law the President signed after his inaugeration.  

February:  The president signed into law the American Recovery and Reinvestment Act of 2009 (a/k/a the "Stimulus").    Important to employers and employees, the law provided a 65% premium subsidy for nine months to employees involuntarily terminated from their jobs since September 1, 2008.  

March:   On March 10 the Employee Free Choice Act (EFCA) was introduced in both houses of Congress.   The proposed EFCA contained the most signicant changes to labor law since the NLRA was enacted in the 1930s.  While the law was and is a top priority for labor unions to get enacted, so far its most controversial provisions, inlcuding elimination of secret ballot elections,  mandatory arbitration, and increased penalties for unfair labor practices make the proposed law unpopular with business interests.

April: The U.S. Supreme Court issues its second labor and employment decision this year: Penn Plaza, LLC v. Pyett.   The Court held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.”  On April 24, the EEOC issued a "Best Practices" document relating to employees with caregiving responsibilities.    The Iowa Supreme Court issued its decision in the case of Varnum v. Brien, which held that Iowa's law that permitted marrigage licenses to be issued only to a man and a woman violated the Iowa Constitution.

May:  On May 1 Governor Culver signed the Iowa version of the Ledbetter Fair Pay Act.  This law amended to the Iowa Civil Rights Act to incorporate provisions of both the Ledbetter Act and the Equal Pay Act.    The H1N1 pandemic was in the news, and the EEOC issued guidelines to help employers comply with the anti-discrimination laws while helping stop the spread of the disease.   Sonia Sotamayor was nominated to replace the retiring Justice Souter on the U.S. Supreme Court.

June:  The U.S. Supreme Court issued two important employment law decisions this month: Gross v. FBL Financial Services, Inc. and Ricci v. DeStefano.    While there is some disagreement, our view is that both decisions were favorable for employers.

July:   The phenomenon of social networking and its impact on the workplace is becoming the issue de jour.    Al Franken is confirmed as the winner of the Senate election in Minnesota, which gives the Democrats a 60th seat and filibuster proof majority.  However, the proposed EFCA law still goes nowhere.  With the economy still in the doldrums, the Department of Labor issues a document addressing frequently asked questions relating to furloughs.

August:  It's the dog days of summer, which means the Iowa State Fair, and controversy over allegations of religious discrimination.

September:  The Iowa Supreme Court issues a ruling in DeBoom v. Raining Rose, Inc. one of the court's most important employment discrimination decisions.   The EEOC released proposed regulations on the ADA Amendments.  In wage and hour news, convenience store chain Casey's General Stores paid $11 million to settle FLSA claims of thousands of current and former employees.

October: President Obama signs into law modifications to FMLA relating to military caregiver leave and qualifying exigency leave relating to military service.

November: The Genetic Non-Discrimination Act becomes effective November 21.  Data from both the Iowa Civil Rights Commission and EEOC show officially what many of us observed in our practices: an uptick in discrimination claims this year.  On November 30, the Eighth Circuit issues an opinion in the remand of Gross v. FBL Financial.   Despite Gross' arguments that his jury verdict under the Iowa Civil Rights Act should stand, the court sent the case back to the Southern District of Iowa for a new trial.

December:  The U.S. Department of Labor issued an "Employment Law Guide" which covers topics such as wage and hour, occupational safety, and employee benefits, among others.   The EEOC and Department of Labor release their regulatory agendas for 2010.   Finally, President Obama signs a law that will extend the COBRA subsidy another two months, until February 28, 2010.

Best wishes for the rest of 2009 and a happy and prosperous 2010!

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There is an interesting op-ed in today's Des Moines Register concerning religious discrimination in the workplace.   The author, Lake Lambert III,  is a professor of Religion at Wartburg College in Waverly.  He contends employees are subject to religious tyranny because Title VII does not give enough protection to employees' ability to practice their religion at work.   Under existing law, an employer is required to provide a reasonable accommodation of an employee's religious practice, unless it would result in an undue hardship on the conduct of the employer's business.  Generally speaking, an accommodation is an undue hardship if it is costly, compromises safety, decreases efficiency, infringes on the rights of other employees, or causes other employees to do more than their share of hazardous or burdensome work.  

Professor Lambert supports a proposed law known as the "Religious Workplace Freedom Act(RWFA)", which would change the existing reasonable accommodation standard.  Under the proposed law, for an accommodation to be considered reasonable, "the accommodation shall remove the conflict between employment requirements and the religious observance or practice of the employee."   The only defense to such an accommodation is if it requires "significant difficulty or expense."  In other words, the burden would be on the employer to alter any employment requirement that conflicts with an employee's religious practice, unless the employer can prove it would be too financially costly.

Few would disagree that employees should be permitted time off to attend religious services, observe holy days, and the like.  If that is the problem, the proposed changes in the law could be more narrowly tailored to address it.   In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves.  What happens when the practices of different religions conflict?  What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles?  Under existing law, employers have more  flexibility to address these situations in the context of legitimate business needs.  The proposed RWFA tips the balance too far the other way.

While Professor Lambert's proposal may sound good in theory as a way of promoting religious tolerance, in practice it imposes unreasonable obligations on employers and adds very little to religious liberty. 

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