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 Kendell
Dickinson, Mackaman, Tyler & Hagen, P.C.
699 Walnut Street, Suite 1600
Des 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 Smid
BrownWinick
666 Grand Avenue, Suite 2000
Des 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.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
©2010
Social Networking Policy
Considerations
Rebecca Dublinske
Dickinson, 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
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.
©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 Dublinske
Dickinson, Mackaman, Tyler & Hagen, P.C.
(515) 246-4505
ADAAA
Signed -- September 25, 2008
 Effective -- January 1, 2009
 EEOC’s Proposed Regulations issued on
Sept. 23, 2009. Final regulations
expected in mid-2010.

ADAAA Purposes
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”

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
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?
Maybe:






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)
No:





Common flu
Sprained joint
Minor gastrointestinal d/o
Broken bone expected to heal
normally
Common cold
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!?!)

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)