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Reminder: Iowa OSHA Form 300A Posting Deadline Approaching

January 30, 2012 by Dickinson Employment and Labor Law Group

- Posted by Joan M. Fletcher

The February 1 Iowa OSHA Form 300A posting date is almost here.   If you have not done so already, it’s time to create an annual summary of injuries and illnesses recorded on your Iowa OSHA 300 Log.  Be sure to review your Iowa OSHA 300 Log entries as extensively as necessary to make sure they are complete and accurate, and correct any deficiencies.

Completing the Form 300A

To complete the Form 300A Summary of Work-Related Injuries and Illnesses, total the columns on the OSHA 300 Log, enter the establishment’s name and address, annual average number of employees covered by the OSHA 300 Log, and the total hours worked by all employees covered by the OSHA 300 Log. 

Certification of the Form 300A

The Form 300A must be certified by a “company executive,” which means:

  • an owner of the company (only if the company is a sole proprietorship or partnership);
  • an officer of the corporation;
  • the highest ranking company official working at the establishment; or
  • the immediate supervisor of the highest ranking company official working at the establishment.

By certifying the Form 300A, the company executive represents that he or she has examined the OSHA 300 Log and reasonably believes, based on the executive’s knowledge of the process by which the information was recorded, that the annual summary is correct and complete. 

Posting and Maintenance Requirements

The Form 300A must be posted in each establishment, in one or more conspicuous places where notices to employees are customarily posted, no later than February 1, 2012 and kept in place until April 30, 2012.  You must also ensure that the posted annual summary is not altered, defaced or covered by other material.   

Employers must maintain the OSHA 300 Log, the privacy case list (if one exists), the 300A Summary, and the OSHA 301 Incident Report forms for five years following the end of the calendar year that the records cover.  The employer need not send any recordkeeping forms to IOSHA or any other agency unless requested.

Exempt Employers

An employer with ten or fewer employees is exempt from maintaining the OSHA log of injuries and illnesses, unless the Bureau of Labor Statistics or IOSHA notifies them that they have been selected to participate in mandatory data collection.

Iowa OSHA also exempts employers in certain low hazard industries, as defined in the recordkeeping standard. Note that exempt employers must still comply with requirements to display an Iowa OSHA Safety and Health poster and report to IOSHA within eight hours any accident that results in one or more fatalities or the hospitalization of three or more employees.

For more information, please contact attorney Joan Fletcher at 515-246-4525 / jfletcher@dickinsonlaw.com or another member of the firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com.

 

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Proposed Rules Extend Minimum Wage and Overtime Protections to Many In-Home Care Workers

January 12, 2012 by Dickinson Employment and Labor Law Group

- Posted by Russell L. Samson and Brant M. Leonard

On December 27, 2011, the Department of Labor’s Wage and Hour Division published a Notice of Proposed Rulemaking that would provide minimum wage and overtime protections to workers who provide in-home care services for the elderly and infirm.  The DOL says the change will affect nearly two million workers. 

The Proposed Rule amends the “live-in worker” and “companionship” exemptions under the Fair Labor Standards Act.  As proposed, the Rule will (1) more clearly define the tasks that may be performed by companions who can remain exempt, (2) limit the companionship exemption to companions employed only by the family or household using the services, and (3) restrict the use of the companionship exemption and/or the live-in domestic services overtime exemption by third party employers, such as in-home care staffing agencies.  Perhaps the most devastating of proposed changes is eliminating the FLSA exemption for in-home care workers of third party employers, which will affect an entire industry.

History

The current regulations exempting companionship and live-in domestics were promulgated in 1975, after Congress amended the FLSA in 1974, and have remained largely unchanged.  Although Congress has not amended this area of the FLSA for 38 years, the DOL now believes its regulations need to be changed.  Attempting to explain its action, the DOL said the in-home care industry has undergone a “dramatic transformation” and that workers who perform in-home services today “are performing duties and working in circumstances that were not envisioned” in 1975.  Hence, the DOL said its proposed changes are necessary because the current regulations may be “too broad and not in harmony with Congressional intent.”

Companionship Services

Currently, persons who provide “companionship services” to the aged or infirm are exempt from both the minimum wage and overtime pay requirements of the FLSA.  The current regulation implementing the companionship exemption defines “companionship services” as “fellowship, care, and protection” to the aged or infirm, and includes exempt services of a household nature related to a person’s care, such as meal preparation, bed making, laundry, and similar services.  29 C.F.R. § 552.6.  The current regulation also allows “incidental” services (like general household work), as long as those services do not exceed 20% of the total companionship services hours worked per week.  The current regulation specifically excludes from the statutory exemption for “companionship services” those services which require and are performed by trained personnel such as a registered or practical nurse.

Although the proposed rules retain the broad definition of exempt “companionship services,” they include new specific lists which likely will have a limiting effect.  For instance, while the current rule mentions three types of companionship services – “fellowship, care, and protection” – the proposed regulation initially only covers “fellowship and protection.”  It defines those two terms to include such tasks as watching television together, taking walks, and engaging in hobbies. 

The “care” permitted by the current rule appears to be relegated to “incidental” services under the proposed rule.  Specifically, the proposed rule would permit what it labels “intimate personal care services” only if those services are “incidental to the provision of fellowship and protection.”  To be “incidental” the services may not exceed 20% of the total hours worked in the workweek.  The proposed regulation has a litany of examples of “incidental intimate personal care services,” including occasional dressing (“assistance with putting on and taking off outerwear and footwear”), grooming, toileting, feeding, and driving (“driving to appointments, errands, and social events”).    

The proposed rule makes clear that “medically-related” duties are not within the scope of exempt companionship services.  Medically-related duties are any kind of “medical care,” including medication management, the taking of vital signs, and assistance with physical therapy.  However, under the proposed rule, reminding the aged or infirm person of a medical appointment or of a predetermined medicinal schedule (e.g., “take your pills”) would be considered exempt, as an incidental intimate personal care service.

Live-In Domestic Workers

Currently, “live-in domestic workers” who reside in the household in which they work are exempt from the overtime pay requirements of the FLSA, but they are not exempt from the minimum wage requirements.  The current regulation implementing this section of the law defines exempt live-in domestic work as “services of a household nature performed by a person living within that household,” and lists the types of employees to which the exemption applies, such as “cooks, waiters, butlers, valets, maids, [and] housekeepers.”  29 C.F.R. § 552.3.  The proposed regulations add to the list, to include “companions, nannies, home health aides and personal care aides.” 

Third Party Employers

Currently, the exemptions for in-home care workers are fully applicable to those working for a third party employer who assigns the workers to a home.  29 C.F.R. § 552.109.  The DOL’s proposed rule will completely reverse that provision and make the exemption applicable only to the individual, family, or household employing the companion or live-in worker.  Under the proposed rule, third party employers will be prohibited from claiming the companionship exemption or live-in domestic worker exemption even if the employee is jointly employed by both the third party and the family or household.

Action and Implications

Affected third party employers of in-home care workers are encouraged to comment on the proposed rule, and may do so until February 27, 2012, when the comment period closes.  More information on the proposed rules and how to comment on them is available at the DOL’s website at http://www.dol.gov/whd/flsa/companionNPRM.htm.  

If these new regulations are adopted as proposed, it is likely that the FLSA’s overtime and minimum wage requirements will become applicable to a substantial number of workers who are currently exempt from the FLSA.  Given the DOL’s position on the proposal, and the substantial damages and civil penalties an employer can potentially face for violation of wage and hour laws, third party employers who employ home care workers are encouraged to review their current practices and begin to take steps to manage the risks presented by the proposed rule.  This includes determining which in-home care workers, if any, can still be exempt, and which ones will require an increase in wage rate and the payment of overtime (and a clearly different timekeeping) if these regulations become final and effective.  In the current political climate and with the upcoming election, we suspect these proposed rules will be made final and effective within the current year.

For more information, please contact attorneys Russ Samson at 515-246-4548 / rsamson@dickinsonlaw.com, Brant Leonard at 515-246-4537 / bleonard@dickinsonlaw.com, or another member of the firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Posted in Compensation/Wages, Congress, Department of Labor, Employer Policies, FLSA, Healthcare Reform, Hiring, Labor Law, Wages/Compensation | Tagged , , , , , , , , , , , , , , , , , | Leave a Comment »

Iowa Employers: Resolve to Be Compliant in 2012

January 3, 2012 by Dickinson Employment and Labor Law Group

- Posted by Bridget R. Penick

Iowa employers who have made New Year’s resolutions to clean up personnel files and ensure compliance with I-9 requirements can gain some free assistance from USCIS in January 2012. USCIS is offering free webinars on three topics: Form I-9 (Employment Eligibility/Verification Form), the E-Verify program (three separate sessions for new users, existing users and federal contractors), and the SelfCheck program (a voluntary, free service that allows individuals to check their own employment eligibility).  Pre-registration is not required to participate.  See USCIS’s E-Verify Webinar Flyer or visit its Webinar Webpage for January 2012.   Iowa employers are encouraged to explore these webinars and to contact your employment law attorney if questions about these programs remain or if assistance is needed in implementing a self-audit of employment records, policies, and/or practices.

If you have questions about compliance with I-9 requirements or employment records/policies/practices, please contact attorney Bridget Penick at 515-246-4545 / bpenick@dickinsonlaw.com, or another member of the firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com.

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New Federal Regulation Institutes Hefty Fines for Cell Phone Use by Commercial Motor Vehicle Operators

December 30, 2011 by Dickinson Employment and Labor Law Group

- Posted by Sara R. Laughlin

Effective January 3, 2012, commercial drivers will no longer be permitted to use hand-held cellular phones while operating commercial motor vehicles (CMVs).  This change in federal regulation is courtesy of the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) and its Pipeline and Hazardous Materials Safety Administration (PHMSA). 

Under the new regulation, holders of a commercial driver’s license (CDL) who are operating a CMV are prohibited from: (1) holding a cell phone to conduct a conversation, (2) using a cell phone by pressing more than one button (a driver can initiate, answer, or terminate a call by touching a single button), and (3) reaching for a cell phone in an unacceptable and unsafe manner (such as reaching for a cell phone located on the passenger seat, under the driver’s seat, or in the sleeper berth).  Hands-free use of a cell phone is allowed using either a wired or wireless earpiece or the speakerphone function of the cell phone. 

The rule provides a limited exception for use of a hand-held cell phone when such use is necessary to communicate with law enforcement officials or other emergency services.

Drivers who violate this regulation may be assessed a federal civil penalty of up to $2,750 for each offense.  Drivers with multiple offenses may be disqualified from operating a CMV.  Also, drivers with two or more serious traffic violations of state or local laws or ordinances may likewise be disqualified from operating a CMV. 

While the new rule does not require motor carriers to establish written company policies or training programs for their drivers, companies employing operators of CMVs (as defined by 49 CFR 383.5) would be wise to implement an employment policy explaining this new federal regulation and prohibiting operators from violating it.  This would be particularly prudent given that under the rule, commercial truck or bus companies that require or allow their drivers to use hand-held cell phones while driving be may penalized up to $11,000 for each offense.

Tips for Employers:

  1. Consider implementing a restrictive cell phone policy for all employees operating any company vehicle;
  2. Consider placing stickers or decals inside company vehicles reminding employees of their obligations under your company’s policy; and
  3. Check with your insurance carrier for any special provisions that may apply to operation of company vehicles.

If you have questions about this new regulation, please contact attorney Sara Laughlin at 515-246-4549 / slaughlin@dickinsonlaw.com, or another member of the firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com.

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NLRB Delays Employee Rights Notice Posting Rule Until April

December 28, 2011 by Dickinson Employment and Labor Law Group

- Posted by Russell L. Samson

The date for posting the new notice enumerating employee rights under the National Labor Relations Act has been postponed, a second time, and is now set to be effective on April 30, 2012.  According to a press release issued by the National Labor Relations Board on Friday, December 23, 2011, this postponement was made “at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.  The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”   

You may recall that when the notice posting was first announced, its effective date was November 14, 2011.  That date was pushed out to January 31, 2012, allegedly due to employer confusion over who was subject to the posting requirement.  This latest action pushes the posting date out even farther, to April 30, 2012.

Employers who have not already determined whether they fall within the jurisdiction of the NLRB, and are thus required to post the new notice, may wish to review the jurisdictional standards of the agency.  These are summarized in the answer to the question “Does my company have to post the notice?” on the Frequently Asked Questions – Poster page of the agency’s website.

Most of Iowa is covered by Region 18 of the NLRB, which has a Resident Office in Room 439 of the Federal Building at 210 Walnut Street in Des Moines.  Assuming the new effective date for the notice posting rule sticks, be sure to comply with it.  That way you might avoid meeting the good folks in the NLRB’s offices to answer an unfair labor practice charge involving failure to post.

If you have questions about the NLRB’s new poster, please contact attorney Russ Samson at 515-246-4548 / rsamson@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Department of Labor Issues Retaliation Fact Sheets

December 27, 2011 by Dickinson Employment and Labor Law Group

- Posted by Jill R. Jensen-Welch

On December 23, 2011, the U.S. Department of Labor issued three new Fact Sheets about retaliation prohibitions.  The Fact Sheets discuss protections from retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”). 

The FLSA Retaliation Fact Sheet incorporates the holding from the U.S. Supreme Court’s March 2011 decision in Kasten v. Saint-Gobain.  There, the Court recognized retaliation protections for verbal complaints made to an employer about possible FLSA violations.

The FMLA Retaliation Fact Sheet provides examples of retaliatory conduct, including manipulating work hours to avoid FMLA responsibilities.  One can only hope and assume that example does not diminish the employee’s obligation to make a reasonable effort to arrange intermittent or reduced schedule leave for treatments “so as not to unduly disrupt the employer’s operations,” as the DOL regulations provide in 29 C.F.R. § 825.203, and the employer’s right to transfer an employee to an alternative position during intermittent or reduced schedule leave, as the DOL regulations also provide in 29 C.F.R. § 825.204.  Another example in the FMLA Retaliation Fact Sheet is discouraging an employee from using FMLA.  Unfortunately, it is relatively common for some employers to discourage the use of FMLA leave—to avoid the paperwork and administrative hassles, to try to evade the protections the FMLA provides to employees, or for other reasons.  This Fact Sheet reinforces this as an unacceptable approach.    

The MSPA Retaliation Fact Sheet includes information about which employers and workers are covered by the MSPA, as well as its retaliation protections. 

The three Fact Sheets also highlight the differences in the statutory and regulatory language under each law’s retaliation protections. This has few practical implications in the workplace, but can be important for lawyers in litigation.

If you have questions about retaliation, please contact attorney Jill Jensen-Welch at 515-246-4536 / jjensen@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Posted in Case Law, Compensation/Wages, Department of Labor, Discrimination, Employer Policies, Employment Litigation, FLSA, FMLA, Retaliation, Supreme Court | Tagged , , , , , , , , , , , , | Comments Off

The NLRB Once Again Readies to Lose a Quorum

December 15, 2011 by Dickinson Employment and Labor Law Group

- Posted by Russell L. Samson

On December 14, 2011, in anticipation of the loss of “the third” member – a loss which will reduce the National Labor Relations Board to two individuals – the NLRB published a “final” set of rules amending 29 C.F.R. Part 102, entitled “Special Procedures When the Board Lacks a Quorum.” 

The National Labor Relations Board is statutorily composed of five persons appointed by the President and subject to Senate approval.  Lately, a number of nominees to the Board have either failed to be confirmed, or have been appointed on a “recess” basis which significantly limits the length of their appointment.  In 2007, the members of the Board recognized that the Board would shrink to two members due to the expiration of both regular and “recess” appointments.  The Board delegated its functions to three members, knowing one of the members’ term would expire in a matter of weeks. That action was an attempt to give the remaining two members status as a quorum of the three person subgroup.  In New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010) , the United States Supreme Court ruled that a two-member National Labor Relations Board  cannot not constitute a quorum of the five member board and has no authority to issue decisions.

In December 2011, the NLRB faces a problem similar to that of late 2007.  In April 2009, President Obama nominated three individuals to fill the vacancies on the NLRB.  After inaction by the Senate (which at the time had a theoretical “filibuster proof” Democratic majority), President Obama “recess appointed” his two Democratic nominees – Craig Becker and Mark Gaston Pearce.  The Senate eventually confirmed Pearce to a full term – one that will expire in August 2013 – and confirmed nominee Republican Brian Hayes to a term which will end on December 16, 2012.  Becker remained a “recess appointee” whose appointment ends on December 31, 2011.  While there were, for a short time, five persons appointed to the NLRB, the term of one Republican expired in August 2010, and the term of one Democrat expired a year later in August 2011.  The expiration of Member Becker’s recess appointment will drop the roster of the Board to two.

Under the NLRB’s new “final” rule issued on December 14, 2011, when the Board lacks a quorum, all motions for default judgment, for summary judgment or for dismissal are to be referred to the Board’s Chief Administrative Law Judge based in Washington, D.C.  Rulings by the Chief ALJ on such matters cannot be directly or immediately appealed to the Board.  However, under the new rule, if once the Board regains the statutory quorum the underlying matter is reviewed by the Board as part of an appeal, and if an exception to the underlying ruling or order by the Chief ALJ is included in the statement of exceptions filed with the agency, the Board will review the ruling of the chief ALJ.

The newly promulgated rule also provides that any request for special permission to appeal  which is pending when the Board loses the statutory quorum (i.e., loses its third member), or which is filed when there is no quorum, is to be referred to the Chief Administrative Law Judge in Washington, D.C., for ruling.  Those rulings by the Chief ALJ are also not immediately appealable directly to the Board.  Rather, if exception is taken to the ruling or order as part of a “regular appeal” of a decision of an administrative law judge in the underlying action, the Board will “consider” it.   

If one stops to consider the efficacy of an “after the fact” appeal of an order denying some kind of interim relief one is not too surprised by the observation in the Notice published in the Federal Register that, “In addition, the Board anticipates that, as in some cases the parties will determine that no exception is warranted, these revisions may serve to reduce the backlog of cases that the Board will face when a quorum is restored.”

Finally, the new rules include a provision that administrative and procedural requests normally filed with the Office of the Executive Secretary for decision by the Board prior to filing a request for review or exceptions are to be filed with the Executive Secretary for ruling. Once again, the new rules provide that the Executive Secretary’s ruling on such matters cannot be immediately appealed to the Board itself, but can be considered by the Board (once it returns to a quorum) if raised by a party in its actual request for review or exceptions. 

Given the contentious nature of not just appointments to the NLRB itself in recent years, but the apparent inability of the Senate to get much of anything done, it is probably reasonable to anticipate that the number of members of the Board will fall below the statutory quorum.  In theory, things will not stagnate – appointed “staff” will make decisions.  It may be noteworthy that President Obama also appointed current Acting General Counsel Lafe Solomon to his position, pending action by the Senate on Solomon’s nomination.  Solomon’s division is responsible for the prosecution of alleged violations of the National Labor Relations Act.

And the lack of a quorum does not keep the Board’s recent rule – adopted by a 2 to 1 vote – requiring paper and electronic notices to employees of their rights under the NLRB from going into effect January 31, 2012.  A copy of the Employee Rights poster is available here.    Further information about the poster and the jurisdiction of the NLRB is provided by the Board in an FAQ document available here.   

If you have questions about the new NLRB rules, please contact attorney Russ Samson at 515-246-4548 / rsamson@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Sweeping Changes in Affirmative Action Requirements for Disabled Workers Proposed Today

December 9, 2011 by Dickinson Employment and Labor Law Group

- Posted by Jill R. Jensen-Welch

Continuing the Obama administration’s aggressive regulatory agenda, the Office of Federal Contracts Compliance Programs published proposed regulations today in the Federal Register that, if adopted, will make sweeping changes to Affirmative Action Plan (AAP) requirements for disabled workers.  The OFCCP’s proposed regulations would set a goal that 7% of the workforce of a federal contractor be people with disabilities. 

Currently, federal contractors who must comply with affirmative action requirements of E.O. 11246 and Section 503 of the Rehabilitation Act of 1973 do not have to set hiring goals or conduct numeric utilization analyses for persons with disabilities like they must do for racial minorities and women.  Only good faith efforts to recruit persons with disabilities are required at present.  According to OFCCP Director Patricia A. Shiu, “Clearly, that’s not working,” because the unemployment rate for the disabled is one and a half times that of those without disabilities, and a new Bureau of Labor Statistics study found that 79.2% of all persons with disabilities are not in the workforce.  “What gets measured gets done,” said Shiu, “and we’re in the business of getting things done.”

In addition to a hiring goal, the proposed regulations new requirements related to data collection, training, record keeping, and policy dissemination for disabled workers that are similar to current requirements for women and racial minorities.

The definition of who is “disabled” under the amended Americans with Disabilities Act is so broad that many applicants and employees qualify for its protections.  The ADA was patterned after the Rehabilitation Act, and the two statutes share almost identical definitions of who is “disabled.”  Taking that into consideration, one might guess that a 7% hiring goal should be easily attained.  Because many disabilities are not visible, however, the bigger difficulty may be in getting applicants and employees to voluntarily self-identify so employers can count them and provide proof of meeting the hiring goal.  More careful review of the proposed regulations will be required before practical considerations can be made with any degree of certainty.

Stay tuned to this blog for more posts on this subject after the proposed regulations are issued.  If you have questions about the OFCCP proposed regulations pertaining to new affirmative action requirements for persons with disabilities, please contact attorney Jill Jensen-Welch at 515-246-4536 / jjensen@dickinsonlaw.com or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Posted in ADA/ADAAA, Affirmative Action, Department of Labor, Disability, Government Contractors, Hiring, Labor Law, OFCCP | Tagged , , , , , , , , , , , | Comments Off

Seven Year Non-Compete Not Unreasonable Says Iowa Court of Appeals

November 30, 2011 by Dickinson Employment and Labor Law Group

- Posted by Janet Phipps Burkhead

On November 23, 2011, the Iowa Court of Appeals reversed the Iowa District Court for Guthrie County and upheld a seven-year, 350-mile radius covenant not to compete.  In Sutton v. Iowa Trenchless, L.C., No. 10582 / 10-2114, the main issue on appeal was the standard under which a non-compete agreement between owners differs from a non-compete between an employer and an employee.

The Iowa Court of Appeals agreed with Iowa Trenchless that a different, less stringent standard was appropriate where a non-compete is negotiated between owners of a business in conjunction with the purchase of a departing individual’s ownership interest.  Although the standard three-pronged test* is to be applied in determining whether a covenant not to compete is enforceable between owners or between an employer and employee, the Court – citing cases from 1945-1975 – held that greater indulgence is given when the non-compete is between owners.  This greater indulgence is afforded because (i) the non-compete agreement adds value to the goodwill of the business sold and (ii) the parties involved (e.g. owners) are presumed to be in a more equal negotiating position than employers and employees.  (Brecher v. Brown, 235 Iowa 627, 631, 17 N.W. 377, 379 (1945), overruled on other grounds by Ehlers v. Iowa Warehouse Co., 188 N.W.2d 268 (Iowa 1971)).   

In reaching its conclusion, the Court of Appeals did caution that this greater indulgence does not mean that all owner-to-owner covenants not to compete are enforceable.  Each case is still analyzed to ensure the restriction is not wider in scope than the operation of the business and there is no other good reason to confine the restriction to narrower limits.

The Agreement also provided that if the company incurred any costs or “reasonable attorneys’ fees” in enforcing its terms, those could be recovered from the individual.  Because it had determined the non-compete enforceable, the Court of Appeals remanded the case to the District Court to determine the amount of attorney fees Iowa Trenchless is entitled to recover.

* The three-pronged test is: (1) Is the restriction reasonably necessary for the protection of the employer’s business; (2) Is it unreasonably restrictive to the employee’s rights; and (3) Is it prejudicial to the public interest?

If you are an employer and have questions about non-compete agreements, please contact attorney Janet Phipps Burkhead at 515-246-4531 / jphipps@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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Posted in Case Law, Employment Contracts, Employment Litigation, Iowa Courts, Iowa Law, Non-competes | Tagged , , , , , , | Comments Off

Alert for Nursing Homes and Residential Care Facilities

November 29, 2011 by Dickinson Employment and Labor Law Group

- Posted by Sara R. Laughlin

Due to increased injuries and illnesses among health care support workers in 2010, OSHA has announced it is launching a National Emphasis Program on Nursing Home and Residential Care Facilities over the next few months.  This initiative will increase OSHA inspections of such facilities.  OSHA intends to focus its inspections on back injuries resulting from resident handling or lifting, exposure to bloodborne pathogens and other infectious diseases, workplace violence, and slips, trips, and falls. 

OSHA’s initiative is in response to statistics recently released by the U.S. Department of Labor’s Bureau of Labor Statistics.  With respect to nonfatal occupational illnesses and injuries requiring days away from work, data showed the incidence rate for health care support workers increased 6 percent in 2010.   This is nearly 2.5 times the rate for private- and public-sector workers.  The rate among nursing aides, orderlies, and attendants rose by 7 percent in 2010. The rate of musculoskeletal disorder cases with days away from work for nursing aides, orderlies and attendants increased by 10 percent.

Nursing homes and residential care facilities would be wise to revisit their policies and procedures with respect to these areas, as well as employee training and compliance efforts.

For more information, please contact attorney Sara Laughlin at 515-246-4549 / slaughlin@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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