POTLUCK POLICIES - Changes to Iowa Law

1. 2010 Legal and Finance Series:Changes you should have made to your employee handbook in 2009Tuesday, February 16, 2010

2. POTLUCK POLICIES-Changes to Iowa Law Ann Holden Kendell Dickinson, Mackaman, Tyler & Hagen, P.C. 699 Walnut Street, Suite 1600 Des Moines, Iowa 50309 515.244.2600

3. Iowa Smokefree Air Act – all employers

4. 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

5. 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

6. Practice pointers • Need to include information on prohibitions in information given to applicants • Need to add section to handbook Iowa Smokefree Air Act

7. Iowa Civil Rights Act- employers with 4 employees or more

8. Recent key amendments: • Addition of “sexual orientation” and “gender identity” to protected classes • Effective July 1, 2007 Iowa Civil Rights Act

9. 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

10. 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

11. 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) Iowa Civil Rights Act

12. Helpful Policies for Union Avoidance Danielle Smid BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 E-mail: smid@brownwinick.com

13. What is a Union? A business selling employees the service of “exclusive representation”

14. What is a Union?(continued) A union is the sole bargaining agent for employees concerning wages, benefits and working conditions

15. What Issues Prompt Employees to Join Unions? In order of importance to employees: 1. Job Security 2. Pay and Benefits 3. Supervisory Practices

16. What Can an Employer Do Before Union Organizing Takes Place? • Adopt policy/philosophy on unions and labor relations

17. What Can an Employer Do Before Union Organizing Takes Place?(continued) • Adopt rules limiting soliciting

18. What Can an Employer Do Before Union Organizing Takes Place?(continued) • Formally/informally audit employee satisfaction

19. What Can an Employer Do Before Union Organizing Takes Place?(continued) • Improve existing communication channels

20. What Can an Employer Do Before Union Organizing Takes Place?(continued) • Establish new communication channels

21. What Can an Employer Do Before Union Organizing Takes Place?(continued) • Empower first-line supervisors

22. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494

23. Social Networking Policy Considerations Rebecca Dublinske Dickinson, Mackaman, Tyler & Hagen, P.C. (515) 246-4505

24. 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

25. 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.

26. 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.

27. 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

28. 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

29. 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.

30. Policy of Accessing Networking Sites • 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.

31. 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.

32. Employee Personal Use of Company Property • Consider the Purpose, Scope, and Pros & Cons • Scope of allowances / prohibitions on company time & equipment

33. 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

34. 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

35. ADAAA Proposed Regulations:Employee Policy Considerations Rebecca Dublinske Dickinson, Mackaman, Tyler & Hagen, P.C. (515) 246-4505

36. ADAAA • Signed -- September 25, 2008 • Effective -- January 1, 2009 • EEOC’s Proposed Regulations issued on Sept. 23, 2009. Final regulations expected in mid-2010.

37. ADAAAPurposes • Restore 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”

38. Definition of Disability • Retains 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

39. 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?

40. Maybe: No: • 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 What Is a Disability?

41. Reasonable Accommodations • No 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!?!)

42. What Can You Do Now? Review existing employee and management policies to change any definitions of the ADAAA. Focus on Reasonable Accommodations: • Consider a separate reasonable accommodations policy with procedures • Reconsider previously denied accommodation requests in light of ADAAA’s changes • Revise managerial training to cover reasonable accommodations issues in more detail • Review and update Job Descriptions ; review the essential functions

43. Additional Q & A

44. 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)