As an attorney representing employers I am often asked, in conjunction with the discussion of a proposed termination of an individual’s employment, whether a “COBRA notice” needs to be provided.  29 USC § 1163(2) excludes from the definition of “qualifying event” under COBRA a termination of employment which is ”by reason of such employee’s gross misconduct.”  So what is “gross misconduct” that would justify not providing a soon-to-be-fired individual with the right to continue to participate at his or her own cost in the employer’s group health insurance plans?

There is no definition of or guidance on what constitutes ”gross misconduct” either in the COBRA statute itself or in the applicable regulations.  The federal judge in Middlebrooks v. Godwin Corporation, No. 1:10-cv-1306 (AJT/JFA) (E.D. Va. February 7, 2012), noted that federal courts have diverged very widely on the question:

Some courts have provided a standard by which conduct can be judged. See Zickafoose v. UBServs., Inc., 23 F. Supp. 2d 652, 655 (S.D.W. Va. 1998) (‘[C]onduct is gross misconduct if it is so outrageous that it shocks the conscience.’); Collins v. Aggreko, Inc., 884 F.Supp. 450,454 (D. Utah 1995) (‘Gross misconduct may be intentional, wanton, willful, deliberate, reckless or in deliberate indifference to an employer’s interest. It is misconduct beyond mere minor breaches of employee standards, but conduct that would be considered gross in nature.’); Paris v. F. Korbel & Bros., Inc., 751 F. Supp. 834, 838 (N.D. Cal. 1990) (defining gross misconduct as ‘conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer’s interests or the employee[']s duties and obligations to his employer.’).

Iowa employers will no doubt recognize the definition in Korbel: It is the definition of the term “misconduct” used by the Iowa Supreme Court and Iowa Workforce Development in determining whether an individual is disqualified from receiving unemployment compensation benefits.  871 IAC 24.32(1)(a).  Many employers are not, however, aware that Iowa’s unemployment compensation law also has a disqualification for “gross misconduct.” The agency has defined that term as “misconduct involving an indictable offense in connection with the claimant’s employment, provided that such claimant is duly convicted thereof or has signed a statement admitting that such claimant has committed such act.”

The federal judge in Middlebrooks specifically declined to formulate a “precise definition of gross misconduct.”  She did, however, conclude that “‘gross misconduct’ requires conduct substantially beyond mere negligence, carelessness, or obstinacy.”  This reinforces that an employer’s determination of “gross misconduct” is subject to de novo review by a court.

The Middlebrooks case provides an excellent teaching tool on how the question might arise.

Lillie Middlebrooks was offered employment by Godwin Corporation around July 29, 2008.  She began working on August 1, 2008.  Godwin Corporation had a contract with the District of Columbia to staff a program known as “Healthy Start.”  Middlebrooks, a registered nurse, was assigned to the program; her duties included supervision of two assistants.  After working for the company for 30 days, Middlebrooks was enrolled in Godwin’s employer-sponsored health plan.   Middlebrooks did not receive the “COBRA general notice” either when she started work or when she was put on the company’s health plan.

Middlebrooks had what the court called “a difficult working relationship with her team members.”  After at least two meetings where Middlebrooks was advised not to engage in certain conduct or the funding of the entire program in which she worked would be jeopardized, Middlebrooks “insisted on continuing” to do what she had been told not to do.  Middlebrooks’  employment was terminated on October 30, 2008.  Godwin sent Middlebrooks a notice labeled “Cobra Letter.”  According to the Court – which held a bench trial on Middlebrooks’ lawsuit – the “Cobra Letter” did not provide the following information:

• An explanation of the consequences of failing to elect or waiving continuation coverage. See 29 C.F.R. § 2590.606-4(b)(4)(vi).
• A description of the qualified beneficiaries’ grace periods for payment and the consequences of delayed payment and non-payment. See 29 C.F.R. § 2590.606-4(b)(4)(xii).
• An explanation of the importance of keeping the administrator informed of the current addresses of all participants or beneficiaries under the plan who are or may become qualified beneficiaries. See 29 C.F.R. § 2590.606-4(b)(4)(xiii).
• A notice that the employee has 60 days to make an election to enroll in COBRA. See 29 U.S.C. § 1165(a)(1).
• The correct date on which the 18-month maximum coverage period would expire. See 29 U.S.C. § 1162(2)(A)(i); 29 C.F.R. § 2590-606-4(b)(4)(viii).2
• The name of the plan under which continuation coverage is available. See 29 C.F.R. § 2590.606-4(b)(4)(i).

On November 18, 2010 – more than two years following the termination of her employment – Middlebrooks filed a lawsuit against Godwin.  She did not serve the lawsuit until March 15, 2011.  In the lawsuit, Middlebrooks sought the statutory penalty of $110 per day for each violation of the COBRA notice requirements, plus pre-judgment interest, costs, expenses, reasonable attorney fees, and whatever other relief the court deemed just and proper. (There was no claim of any injury from the failure to provide the notice, so no compensatory damages for the injury were sought.)

One of the first things that comes to mind is “no harm, no foul.” Where and how was Middlebrooks injured?  29 U.S.C. §1132(c)(1) by its terms provides that any plan administrator who “fails to meet the [notice] requirements” of 29 U.S.C. §§ 1166(a)(1) – (1) “at the time of commencement of coverage” or (4) after a “qualifying event” – “with respect to a participant or beneficiary … may in the court’s discretion be personally liable to such participant or beneficiary in the amount of $100 a dayfrom the date of such failure … .“  The amount of the penalty is in the court’s discretion, but the purpose is to “punish non-compliance with ERISA,” not compensate the participants for injuries.  In this case, the court determined a total penalty of $500.00 was appropriate.

As anyone who has ever experienced it knows, litigation is not cheap.  Middlebrooks represented herself pro se.  (Some plaintiffs’ lawyers somewhere must have exercised some judgment?)  The employer, Godwin, had the expense of an attorney up to and through trial before a federal judge.  And in suburban Washington, D.C., no doubt $500.00 did not come close to the total costs the employer incurred.

So Iowa employers take note:  If you decide you are not going to send a COBRA notice under the “gross misconduct” exception, you may find a court second-guessing your decision – and imposing a penalty even if the plaintiff suffered no actual injuries at all.

And as a corollary lesson from  Middlebrooks to Iowa employers – and indeed, employers everywhere – develop a protocol that ensures you can prove both of the required COBRA notices are sent, and sent in a timely manner. 

Finally, do not attempt to re-invent the wheel.  Use the DOL “model” general notice (in Spanish) and the DOL “model” election notice (in Spanish), and take care to complete each accurately and completely to cover the specific situation.

For more information, 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.

On the day that comments were due on proposed regulations beefing up affirmative action requirements for disabled workers, the Office of Federal Contracts Compliance Programs of the U.S. Department of Labor announced a short extension of the deadline.  The comment period was set to end on February 7, 2012, but was extended to February 21, 2012, giving everyone fourteen more days.  Our December 9, 2011 post on this topic explained the proposed regulations. 

If you have questions about these proposed regulations, 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. 

The Eleventh Circuit Court of Appeals recently held that an employee’s pre-eligible request for post-eligible FMLA leave is protected activity under the FMLA.  Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).

Plaintiff Pereda was hired on October 5, 2008.  In June 2009, she advised her employer that she was pregnant and would be taking FMLA leave following the birth of her child around November 30, 2009.  Pereda’s lawsuit alleges that following her FMLA request, her managers disciplined her for using accrued sick and personal leave to visit the doctor.  Pereda also alleges that she was disciplined for notifying management of an absence via e-mail rather than seeking verbal authorization.  In September 2009, Pereda’s doctor advised her to take a few days of bed rest.  Pereda’s lawsuit alleges that she notified the employer of her doctor’s order in a message left for the Executive Director prior to taking the time off.  Pereda claims she was not contacted by the employer during her bed rest and was terminated upon returning to work immediately thereafter.  Pereda alleges she used accrued sick and personal leave for the absences.      

The district court dismissed Pereda’s lawsuit.  It held that the employer could not have interfered with Pereda’s FMLA rights because she was not entitled to FMLA leave at the time she requested it.  The district court also held that because Pereda was not eligible for FMLA leave, she could not have engaged in protected activity, and therefore the employer could not have retaliated against her. 

The Court of Appeals reversed, because “allowing the district court’s ruling to stand would violate the purposes for which the FMLA was enacted.”  The Court reasoned that the FMLA’s requirement of notice in advance of leave means employees are protected from interference with their FMLA rights prior to the occurrence of the triggering event, such as the birth of a child.  “As the statute requires advance notice, logic mandates that [the] FMLA be read to allow a cause of action for employees who, like Pereda, in goodwill exceed the notice requirement.”  The Court also held that employees giving pre-eligible advanced notice of a need for FMLA leave are engaging in protected activity, and they are therefore protected from retaliation “because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in the planning for the absence of employees on FMLA leave.”  The Court emphasized that it was not creating a “new class of employees,” as argued by the employer.  “We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

The Eleventh Circuit is not alone in its analysis of this issue.  The Pereda Court cited a similar decision by the Sixth Circuit Court of Appeals, as well as two decisions of federal district courts in the Northern District of Illinois and the Eastern District of Pennsylvania. 

Pereda is a clear message that going forward, employers subject to the FMLA need to carefully scrutinize all employment decisions, including discipline, for potential FMLA liability regardless of an individual employee’s eligibility for the same at the time of the employment decision.      

Iowa employers should also be aware of Iowa’s law prohibiting termination of employment “because of” an employee’s pregnancy.  Iowa law further requires that an employer grant to an employee disabled by pregnancy a leave of absence from work “if the leave of absence is for the period that the employee is disabled because of the employee’s pregnancy, childbirth, or related medical conditions, or for eight weeks, whichever is less.”  Iowa law also prohibits an employer from retaliating against an employee who exercises her right to maternity leave.  Similar to the FMLA, Iowa’s law provides that for this protection, the “employee must provide timely notice of the period of leave requested and the employer must approve any change in the period requested before the change is effective.”  An employee, perhaps one not yet pregnant, making inquiry about an employer’s policy on “notice” under this statute would probably be regarded as engaging in protected activity under this provision.

If you are an employer and have questions about your obligations under the FMLA, 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.

On January 11, 2012, the U.S. Supreme Court acknowledged a “ministerial” exception to virtually all employment discrimination laws, and held that a teacher at a Lutheran school could not pursue a claim under the Americans with Disabilities Act (ADA).  Although federal appellate courts have long recognized a ministerial exception to anti-discrimination laws, the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission opinion issued this month represented the first time the Supreme Court recognized such an exception.

Citing First Amendment principles, the Court explained that religious organizations may make employment decisions without government interference.  As such, the ministerial exception bars application of employment discrimination laws to claims arising out of an employment relationship between a religious organization and its ministers.  After the Hosanna-Tabor opinion, employers may still struggle to decide exactly which employees qualify as a “minister” for purposes of the exception.

The Hosanna-Tabor Evangelical Lutheran Church and School belonged to the Lutheran Church-Missouri Synod.  The Synod classifies school teachers into two categories – “called” and “lay.”  Teachers must meet certain academic and religious requirements to be eligible to be considered called.  Once called, a teacher is given the formal title “Minister of Religion, Commissioned.”  Lay teachers are not required to complete the extra training, and in fact, are not even required to be Lutheran.  Lay teachers often perform the same duties as called teachers, but are only hired when called teachers are unavailable. 

Teacher Cheryl Perich began teaching at Hosanna-Tabor as a lay teacher in 1999, but became a called teacher after completing the required training.  While Perich spent the majority of her time teaching secular subjects, she also taught a religion class a few times a week, led students in daily prayer and devotionals, took students to a weekly chapel service, and herself led chapel service about twice a year. 

Perich and Hosanna-Tabor ran into a conflict when Perich tried to return from medical leave she took after she developed narcolepsy.  When the school suggested she resign, Perich threatened to sue under the ADA.  Ultimately, the school fired her when she tried to return to her job.  The termination letter cited “insubordination and disruptive behavior” as well as her threat to sue as reasons for her dismissal.  According to the school, the threat to sue violated the Synod’s belief that disputes should be resolved internally.  Perich filed a charge of discrimination and retaliation with the EEOC, the EEOC brought an ADA lawsuit against Hosanna-Tabor, and Perich intervened in the court action. 

The district court granted summary judgment in favor of Hosanna Tabor, concluding a ministerial exception bars claims arising from the employment relationship between a religious institution and one of its ministers.  Although it recognized a ministerial exception exists, the Sixth Circuit disagreed Perich fit the exception.  Putting special emphasis on the fact her duties as a called teacher mirrored her duties as a lay teacher, the circuit court concluded that Perich did not quality as a “minister” under the exception.

Reversing the Sixth Circuit, the Supreme Court determined Perich did qualify as a minister for purposes of the exception.  The Court explained the exception applies to more than just the leader of a religious organization, but it did not adopt a rigid formula for deciding when an employee qualifies as a minister. 

According to the Supreme Court, the Sixth Circuit gave too little weight to Perich’s title of commissioned minister, and the significant religious training that entailed.  Additionally, the Sixth Circuit gave too much weight to Perich’s performance of secular duties, and to the fact that lay teachers performed the same religious duties as Perich.  While the amount of time spent on religious activities may be relevant to the inquiry, those facts are not dispositive and cannot be considered in isolation.  Perich held herself out as a minister, had been commissioned as a minister, had received significant religious training, and her job duties reflected a role in conveying the church’s message.  The Court did not articulate a bright line test, but said these facts were sufficient to bring Perich within the exception.

The Hosanna-Tabor opinion makes it clear a ministerial exception precludes discrimination lawsuits by ministers against religious employers.  The biggest question that remains is who, exactly, will be considered a “minister” for purposes of the flexible rule?  We know the exception reaches beyond just leaders of the organization, and it is not limited to only those workers who perform exclusively religious functions.  The majority opinion would follow a multi-factor analysis, but we still don’t know the exact contours of the definition of “minister.”  Additionally, employers should remember this opinion does not apply to any one particular religion.  The Court also left open the question of whether a ministerial exception bars other kinds of lawsuits by employees against a religious employer, such as breach of contract or tort actions.

If you have questions about hiring in accordance with civil rights legislation, please contact attorney Megan Erickson at 515-246-4538 / merickson@dickinsonlaw.com, or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.

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.

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.

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.

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.

We have assisted many of our clients in developing not only policies for DOT compliance, but general policies concerning cell phone usage while operating any company vehicle.  If you have questions about this topic, 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.

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.

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.