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

Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee's abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer's Law Blog discusses an interview with Phillies' starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC's own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

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Wage and hour collective actions remain active in Iowa.  A Judge in Clinton County just approved a collective action settlement in which Wal-Mart agreed to pay $11 million to settle claims that it failed to pay overtime, properly account for breaks, and altered time records.   Employees and former employees who worked for Wal-Mart in Clinton between 1999-2009 will receive between $25-300 each. 

Flu season is officially underway, and the H1N1 virus has been back in the headlines.  Ogletree Deakins has published an informative Question and Answer document concerning an employer's rights and obligations in dealing with employees who have the H1N1 virus.    In addition, the EEOC recently published a technical advisory entitled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."

Also from the EEOC, the Agency released on October 6 an informal opinion letter concerning employee health risk assessments.   The letter, authored by EEOC assistant legal counsel Peggy Mastroianni, takes the position that requiring employees to answer personal health questions as a condition of receiving an employer provided health reimbursement expense benefit violates the ADA.  Although an informal opinion letter is not binding, it provides insight into how the Agency evaluates these issues.   For more analysis see this post at the Washington D.C. Employment Law Update.

Are you a lawyer who regularly uses motions for summary judgment in defending employment claims?  Before you file your next one, check out this post at Workplace Prof Blog.  Lawyers for United Airlines filed a motion for summary judgment in a race discrimination suit pending in California state court.  The Court noted the motion sought "adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages."   Once the plaintiff's resistance and the defendant's reply were considered, 5,415 pages of material were presented to the trial judge. The Appellate Court characterized this as  "what may well be the most oppressive motion ever presented to a superior court ".   

In reversing the trial court's ruling granting summary judgment, the Court spared no criticism of the trial judge.   The reason for the reversal: "what apparently happened is that the trial court did not read all the papers."   However, in the end, the Court gave the trial judge a break: "While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order."

The Court concluded with an admonition we all should heed the next time we file one of these motions: "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."

Finally, Molly DiBianca at the Delaware Employment Law Blog reports on a survey of employers concerning their use of social networking media as part of applicant screening.    45% of respondents reported using social networking for background checks, with 35% of those having rejected a candidate for what they found there.   What will disqualify a potential employee?  Among other things, provocative photos or information; depiction of drinking or drug use; lying about your background or qualifications; or discriminatory comments.

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An update on H1N1--the confirmed number of cases in Iowa is now 60, and perhaps growing.   That is up 17 cases since our last post on this subject two days ago.   In addition to the existing public health and employer challenges this disease presents, will a potential pandemic provide the impetus for Congress to mandate paid leave for employees? 

There are reports that Senator Edward Kennedy (D., Mass.) plans to reintroduce next month the "Healthy Families Act".  The bill would require employers with fifteen or more employees to provide at least seven paid sick days per year to full time employees.  According to The Des Moines Register, Iowa's Senators and Representatives are divided on the proposed law, which was first introduced, but not enacted, in 2007.    Existing federal law requires private employers with 50 or more employees and all public employers to provide up to twelve weeks of unpaid leave because of a serious health condition of the employee or a close family member.   However, there is no law that requires paid time off because of illness.

Opponents of the law in Iowa's delegation are concerned about the impact of another employer mandate on small business.   While no reasonable employer wants its employees to be harmed in the event of an illness, the law as it was proposed in the last Congress not only imposes the obligation of paid leave, but also provides that employees may enforce the act with a civil lawsuit. 

Interested parties should contact their Senator or Representative and let them know your views.

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As of a couple of day ago, there were 43 reported cases of swine flu--what is now being called "H1N1"--in Iowa.   

Given the continued spread of this virus, employers would be wise to develop plans to deal with H1N1 issues that could affect their employees and their workplace.   The Des Moines Register published an article today  (link here) about the choice many employees make between staying home or going to work when they are sick.    The article suggests that employees who lack paid sick leave are more likely to show up at work when they are sick, thus raising the risk of infection by co-workers and customers.

What should an employer do to protect the health of its employees and customers, while at the same time making sure to comply with employment laws?  The first step is to be informed.  The website pandemicflu.gov provides lots of helpful information and tips to stay abreast of the virus and its spread.

In addition, the EEOC has recently published two articles to assist employers in dealing with H1N1 issues.  The first, ADA Compliant Employer Preparedness for the H1N1 Flu Virus provides guidance on dealing with employee absenteeism and infection control in ways the comply with the disability discrimination laws.    According to the EEOC publication, employers are permitted to gather personal information from employees in connection with pandemic preparation so long as the employer asks broad questions that are not limited to disability related inquiries.   The EEOC even provides a sample questionnaire that complies with the ADA.   In addition, employers may implement common sense infection control procedures without implicating the ADA.

The second EEOC document, entitled Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), cautions employers about national origin discrimination in light of the fact that the h1N1 virus is believed to have originated in Mexico.   The publication also provided helpful links concerning pre-employment physical exams and disability related questions to employees.

We will continue to keep you posted on developments in this area.

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