2010 Legal and Finance Series:Changes you should have made to your

employee handbook in 2009

Tuesday, February 16, 2010

POTLUCK POLICIES-Changes to Iowa Law

Ann Holden KendellDickinson, Mackaman, Tyler & Hagen, P.C.

699 Walnut Street, Suite 1600Des Moines, Iowa 50309

515.244.2600

Iowa Smokefree Air Act – all employers

Iowa Smokefree Air Act

Became effective July 1, 2008:

prohibited smoking in public places AND placed notice requirements on employers◦must communicate prohibitions to applicants AND

employees◦must communicate how to make complaints ◦statute prevents retaliation for filing complaints –

best practice is to include a prohibition on retaliation

Iowa Smokefree Air Act

Prohibitions:

Smoking in public places AND “all enclosed areas within places of

employment”◦“enclosed area” = All spaces between a floor and ceiling that

is contained on all sides by solid walls or windows, exclusive of doorways, which extend from the floor to the ceiling.

◦“place of employment” = An area under the control of an employer and includes all areas that an employee frequents during the course of employment or volunteering.

Iowa Smokefree Air Act

Practice pointers

Need to include information on prohibitions in information given to applicants

Need to add section to handbook

Iowa Civil Rights Act- employers with

4 employees or more

Iowa Civil Rights Act

Recent key amendments:

Addition of “sexual orientation” and “gender identity” to protected classes

Effective July 1, 2007

Iowa Civil Rights Act

Recent key amendments:

Iowa Wage Discrimination in Employment Act –Violation occurs when an individual is affected by application of a discriminatory pay decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Effective July 1, 2009

Iowa Civil Rights Act

Recent key amendments:

Iowa Wage Discrimination in Employment Act (continued)

Sold as mirror to Lilly Ledbetter Fair Pay Act, but goes much further all protected classes are covered (age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability)

Iowa Civil Rights Act

Practice pointers

Change handbook language on harassment and discrimination to include “gender identity” and “sexual orientation”

Change handbook language to include pay differentials as part of prohibited discrimination

Make sure that you outline complaint procedures in handbook on all harassment and discrimination issues (& retaliation)

Helpful Policies for Union Avoidance

Danielle SmidBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

E-mail: smid@brownwinick.com

What is a Union?

A business selling employees the service of “exclusive representation”

What is a Union?(continued)

A union is the sole bargaining agent for employees concerning wages, benefits and working conditions

What Issues Prompt Employees to Join

Unions?

In order of importance to employees:

1. Job Security

2. Pay and Benefits

3. Supervisory Practices

What Can an Employer Do Before Union Organizing

Takes Place?

• Adopt policy/philosophy on unions and labor relations

What Can an Employer Do Before Union Organizing

Takes Place?(continued)

• Adopt rules limiting soliciting

What Can an Employer Do Before Union Organizing

Takes Place? (continued)

• Formally/informally audit employee satisfaction

What Can an Employer Do Before Union Organizing

Takes Place? (continued)

• Improve existing communication channels

What Can an Employer Do Before Union Organizing

Takes Place? (continued)

• Establish new communication channels

What Can an Employer Do Before Union Organizing

Takes Place? (continued)

• Empower first-line supervisors

Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494

©2010

Social Networking Policy Considerations

Rebecca DublinskeDickinson, Mackaman, Tyler & Hagen, P.C.(515) 246-4505

©2010

Policy Goals:

• Monitor or restrict online activities during work hours or on work computers

• Monitor or restrict certain communications that may have consequences for employer

©2010

Creation Process:Examples from other sources may not fit your needs. (marketing v. confidentiality; highly creative v. traditional)

Who drafted example policies and for what purpose?

Social networking policies require individualized attention and should be specifically tailored to the needs of each employer.

©2010

Before You Draft the Policy:

Talk to IT personnel, HR Department , department heads, and legal counsel to determine business interests, needs, goals, and expectations of what the policy needs to address.

©2010

Effect of Employees’ PersonalOnline Activities

Potential that online activities will:• Harm employer’s reputation • Disparage other employees • Disclose proprietary information• Result in vicarious liability• Otherwise violates company policy

©2010

Employees’ Online Activities

• Employment litigation often a result of employer’s exercise of discretion.• Litigation is more likely when:

• Employer deviates from standard discipline procedure, and

• Differential discipline among similarly situated

employees

©2010

Employees’ Online Activities Uniform application of

disciplinary and termination procedures can mitigate discrimination and retaliation claims. A written policy can help protect employers against claims of unfair or selective enforcement.

©2010

• If you will monitor current employees’ sites, have internal written policy governing the process before looking at social network sites.

• Who, what, when, where, why, how• Be consistent. Ad-hoc process could

easily lead to selective enforcement issues.

• Don’t use deceptive alias or others’ login information. If you can’t get access without manipulating a user or the system, stop trying.

Policy of Accessing Networking Sites

©2010

At-Work Social Networking• Communicate that while on company time, on company computers, or whenever you identify Employer, Employee should refrain from activities online that do not bring value to Employer.

•Note that social networking activities should not interfere with work.

©2010

Employee Personal Use of Company Property

• Consider the Purpose, Scope, and Pros & Cons

• Scope of allowances / prohibitions on company time & equipment

©2010

Company Information Policy

• Employees should not mention or discuss online the company’s proprietary information or trade secrets

• including comments about customers, suppliers – even if names are not used

• also including textual or visual disclosures

©2010

Considerations for Social Networking Policy

•Law always in flux• New area: socialnetworkinglawblog.com• Megan Erickson – TAI session • No policy can anticipate every issue • Goal: proactively manage risks

ADAAA Proposed Regulations:Employee Policy Considerations

Rebecca DublinskeDickinson, Mackaman, Tyler & Hagen,

P.C.(515) 246-4505

ADAAA Signed -- September 25, 2008Effective -- January 1, 2009EEOC’s Proposed Regulations issued on

Sept. 23, 2009. Final regulations expected in mid-2010.

ADAAA PurposesRestore intent of the original ADA and

overturn four U.S. Supreme Court decisions that narrowed the interpretation of the ADA

Change the focus of ADA cases to whether the Employer met its obligation to reasonably accommodate Employee rather than centering on whether the Employee is “disabled”

Reduce the standard for “substantially limits” a major life activity

Broaden the reach of “major life activities”

Definition of DisabilityRetains 3 categories

◦Having an actual physical or mental impairment that substantially limits one or more major life activities

◦Having a record of such an impairment◦Being regarded as having such an

impairment*HOWEVER - requires a broader

interpretation and application to cover more people

What Is a Disability?Yes:

Deaf and Blind Intellectual disability (mental retardation) Partial or complete missing limbs Mobility impairments requiring wheelchair Autism Cancer Cerebral Palsy Diabetes Epilepsy HIV/AIDS MS / MD Major depression, bipolar d/o; PTSD; OCD;

Schizophrenia

What Is a Disability?

Asthma HBP Learning disability (speed, ease,

time, effort, difficulty, academic success of reading, learning, thinking or concentrating)

Back or Leg impairments (standing duration, walking distance, weight lifting)

Psychiatric (time/effort to concentrate, capacity to interact, appetite)

Carpal Tunnel Syndrome (amt of pain when writing, using keyboard, how long can do manual tasks)

Common flu Sprained joint Minor gastrointestinal d/o Broken bone expected to heal

normally Common cold

Maybe: No:

Reasonable AccommodationsNo obligation to Reasonably

Accommodate a “Regarded As” Disability

Must reasonably accommodate those with an actual disability

Must reasonably accommodate those with a “record of” a disability (why or how, we’re not sure!?!)

What Can You Do Now?

Review existing employee and management policies to change any definitions of the ADAAA.Focus on Reasonable Accommodations:

a. Consider a separate reasonable accommodations policy with procedures

b. Reconsider previously denied accommodation requests in light of ADAAA’s changes

c. Revise managerial training to cover reasonable accommodations issues in more detail

d. Review and update Job Descriptions ; review the essential functions

Additional Q & A

Upcoming TAI Events•Legal and Finance Clinic: Employee dishonesty in times of recession: Safeguards and proper handling (March 16, 2010)

•2010 Prometheus Awards (April 6, 2010)

•Legal and Finance Clinic: Legal implications of social media in the workplace (April 20, 2010)

•The Heartland GreenUp IT Symposium & Expo (May 5, 2010)