Workplace Wise - Iowa Employment Law Attorneys

Thursday, January 9, 2020

"Ban the Box" to be Banned?

By Ann Holden Kendell

Last week, the Iowa Association of Business and Industry (ABI) filed a lawsuit against the City of Waterloo, the Waterloo Commission on Human Rights and the Waterloo City Attorney seeking to stop the “Ban the Box” law the city passed November 5, 2019. 
For more information on Ordinance No. 5522, see:

The lawsuit is requesting: (1) an injunction to stop enforcement of the ordinance; and (2) a declaratory judgment from the Court in Black Hawk County declaring the city ordinance to be in violation of Iowa law.

Specifically, ABI accurately notes that Iowa Code section 364.3(12)(a) provides that “a city shall not adopt” any ordinance “providing any terms or conditions of employment that exceed or conflict with the requirements of federal or state law . . . relating to hiring practices . . . or other terms or conditions of employment.”

Ordinance No. 5522 governs when employers can inquire about an applicant’s criminal history and whether and how employers can consider an applicant’s criminal record when making hiring decisions.

While the ordinance does not become effective until July 1, 2020, Waterloo employers will need to review – and potentially alter – hiring practices before that date to comply with the ordinance. Therefore, ABI seeks to enjoin Ordinance No. 5522 in addition to having the Court declare it is in violation of Iowa law.

If you have questions about hiring practices, please contact Ann Holden Kendell or any of our Employment & Labor Law Practice Group members for more information.

Thursday, December 19, 2019

The NLRB Bears Gifts for Employers - Just in Time for the Holidays

By Elizabeth Coonan

NLRB Rulings Shake Up Previous Standards

On December 16, the National Labor Relations Board (NLRB) issued two decisions which overrule previous standards regarding workplace confidentiality and work email usage for personal communications. We expect employers will see these as welcome changes. Read on for more good cheer.

Apogee Retail LLC d/b/a Unique Thrift Store (Case No. 27-CA-191574)

In the Apogee retail decision issued yesterday, the NLRB examined two written rules disseminated by the employer – one which required employees to “maintain confidentiality” regarding workplace investigations into illegal or unethical behavior and the other prohibiting “unauthorized discussion” of investigations or interviews with other employees. Previous guidance on this issue demanded a case-by-case determination on whether confidentiality could be required for a specific investigation (Banner Estrella Medical Center, 362 NLRB 1108 (2015)). The Banner decision was overruled by the NLRB, and going forward, the Board is adopting the facially neutral test in Boeing Co. (365 NLRB No. 154 (2017)).

This facially neutral test permits investigation-related confidentiality rules if confidentiality obligations apply for the duration of the investigation. To the extent that there is no time limit on the confidentiality provisions, then a case-by-case analysis is required of any post-investigation adverse impact on NLRA-protected conduct. In short, such investigation-related confidentiality provisions should be narrowly tailored to ensure employers can take full advantage of the new ruling.

Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (Case No. 28-CA-060841)

The issue before the NLRB in this case centered on whether employees were permitted to use email and IT resources for the purpose of engaging in personal activities protected by Section 7 of the NLRA – specifically those activities involving labor organizations, collective bargaining groups, and the like. The NLRB reviewed “decades” of board precedent and came to the conclusion that the precedent of allowing employees to utilize employer-owned equipment for non-work purposes violated the Supreme Court’s view that an employer’s organizational rights are akin to property rights. This decision returns to the standard that “employees have no statutory right” to use employer equipment, including IT resources, for Section 7 purposes. However, the NLRB did carve out an exception for the rare cases where an employer’s email system is the only means for employees to communicate with one another.  

It looks like it is time once again to start amending those handbook policies.
For more information, contact Beth Coonan and Caitlin Klingenberg at and, or another member of BrownWinick’s Employment Law Practice Group.

Tuesday, December 17, 2019

Waterloo Bans the Box - Other Employers Need to Think Outside It

By Ann Kendell

On a final vote November 4, 2019, the Waterloo City Council narrowly passed a city ordinance intended to help people with criminal histories find jobs by reducing the effect of the stigma of an arrest or conviction. The “Fair Chance Initiative” goes into effect on July 1, 2020. These types of measures, commonly called “ban the box” initiatives, seek to require employers to consider a candidate’s qualifications before learning of a criminal past. Waterloo is the first city in Iowa to pass an ordinance of this kind, and will join more than 150 other cities in the country in “banning the box.”

Specifically, the Waterloo ordinance prevents the city and all private employers from having a question about criminal records on job applications, while those employing 15 or more workers are not allowed to ask about criminal records until making a conditional job offer. Employers can still conduct criminal background checks and can rescind job offers for legitimate business reasons.

A violation of the ordinance may subject an employer to a fine payable to the candidate, but the ordinance does not create a private right of action – so the candidate cannot sue the employer for other monetary damages under this law. However, the employer could be subject to other state and federal employment laws that may create liability for failing to hire.

In 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance regarding the regarding the use of arrest or conviction records in employment decisions. The concern was using arrest or conviction records in employment decisions may have a disparate impact on race and national origin. The EEOC’s guidance referenced a case in the United States Court of Appeals for the Eighth Circuit, Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975). The Eighth Circuit is the appellate court for Iowa’s federal courts. In Green, the Eighth Circuit held that it was discriminatory under Title VII for an employer to follow “the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense." In a second appeal to the Eighth Circuit, Green v. Missouri Pacific Railroad Company, 549 F.2d 1158 (8th Cir. 1977), the Court upheld the lower court's injunction prohibiting the employer from using an applicant's conviction record as an absolute bar to employment, but allowed the employer to consider a prior criminal record as a factor in making individual hiring decisions, as long as the these three factors were taken into account: 
  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.
Employers should use the "Green factors" to assess whether considering a prior criminal record to exclude a candidate is job-related for the position in question and consistent with business necessity. Therefore, even if you are not in Waterloo, Iowa, employers should still consider whether any hiring practices have a disparate impact based upon protected characteristics.
  • Do advertised lifting requirements match reality or are we unnecessarily screening out women and people with disabilities? 
  • Do employees need to have a high school diploma or are we unnecessarily screening out people based upon race and disability status?
  • Are your hiring requirements related to the job in question and consistent with business necessity?

If you have questions about hiring practices, please contact Ann Holden Kendell or any of our Employment & Labor Law Practice Group members for more information.

Additional Information

Another Final Rule from the DOL Regarding the FLSA – Effective January 15, 2020

By Ann Kendell

Previously, the U.S. Department of Labor released its Final Rule on September 24, 2019, updating the earnings requirements for exempt employees under the Fair Labor Standards Act ("FLSA"). Please see prior blog post:

Now, the DOL has published another Final Rule (on 12/16/19) that may impact how overtime is determined for non-exempt (hourly) employees. Overtime pay is at least one and one-half times the regular rate for hours worked in excess of 40 hours per workweek. What is the regular rate?  Hidden dangers abound in figuring regular rate of pay. For example, production bonuses provided at the end of the year should be included in the regular rate of pay for employees during the time frame in which the production bonus was earned, AND for all overtime hours paid – the employer needs to pay the additional overtime premium on the new rate of pay (with the production bonus factored in). What about other types of perks?

This Final Rule attempts to “provide clarity that allows employers to provide more benefits to their employees without unknown overtime consequences or litigation, and better reflect the 21st-century workplace.” The DOL confirms that employers may exclude the following from an employee’s regular rate of pay (i.e., not have to pay overtime on these benefits):
  • the cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;
  • payments for unused paid leave, including paid sick leave or paid time off;
  • payments of certain penalties required under state and local scheduling laws;
  • reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”;
  • certain sign-on bonuses and certain longevity bonuses;
  • the cost of office coffee and snacks to employees as gifts;
  • discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples) and
  • contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.

BUT, beware of the bonus issue. As has always been the case, simply calling a bonus “discretionary” does not actually make a bonus discretionary and excluded from the regular rate.

The Final Rule also eliminates the restriction that “call-back” pay and other payments similar to call-back pay must be “infrequent and sporadic” to be excludable from an employee’s regular rate, while still requiring that such payments must not be prearranged. The DOL also updated its regulations on “basic rate”, which is authorized under section 7(g)(3) of the FLSA as an alternative to the regular rate under specific circumstances.

If you have questions about how the new rule may impact your business, please contact Ann Holden Kendell or any of our Employment & Labor Law Practice Group members for more information.

Additional Information

Wednesday, December 11, 2019

Electronic H-1B Lottery for FY2021 Announced

By Elizabeth Coonan and Caitlin Klingenberg

In an effort to streamline processes, U. S. Citizenship and Immigration Services (USCIS) announced on December 6, 2019 that it will be implementing an electronic registration process for the lottery selection of H-1B cap subject petitions. Under the new process,
employers seeking H-1B workers will complete a registration process to determine lottery selection, prior to preparing full petition documents. The registration period will run from March 1 to 20, 2020. The timeframe associated with notification of lottery selection is unclear, but we know that candidates selected in the lottery may begin to file their petitions on April 1, 2020.

Lottery System

By way of background, among the employer-sponsored visas available, the lottery system is unique to the H-1B visa. USCIS only conducts a lottery to determine which petitions will be granted if more petitions are received than the number of visas permitted under the statutory cap.  Currently, the cap is set to allow 65,000 beneficiaries through the general category and another 20,000 for individuals holding advanced degrees (i.e., masters or doctorate degrees). With approximately 200,000 petitions having been filed last year for a total of 85,000 slots, we can expect a lottery again this year.  

New Registration Tool

The new online registration process only requires basic information about the company and each requested worker, such as name and address of the company, contact information for an authorized signatory of the company, and name, degree level, and passport information of the beneficiary. USCIS is imposing a fee of $10/registration. USCIS has also indicated the possibility of suspending the registration for technical difficulties if their system crashes.  

Implications and Considerations

While the new registration system will undoubtedly result in cost savings for employers, it is critical to evaluate the employee’s qualifications in conjunction with the legal standards before committing to sponsorship. BrownWinick immigration attorneys Elizabeth Coonan and Caitlin Klingenberg stand ready and able to help you navigate the process. Contact us at and

Tuesday, September 24, 2019

DOL's New Overtime Rule Released, Updating Earnings Thresholds

By Megan Erickson Moritz

Today, the U.S. Department of Labor released its final rule, updating earnings requirements for exempt treatment under the Executive, Administrative, and Professional (or "EAP") exemptions of the Fair Labor Standards Act ("FLSA").

Under the final rule:
  • The salary level requirement under the EAP exemptions will rise from $455 a week (or $23,660 annually), to $684 (or $35,568 annually). 
  • The total annual compensation for certain "highly compensated employees" also goes up, from $100,000 to $107,432 annually.  
  • Employers will be allowed to use certain non-discretionary bonuses, commissions, and incentive payments that are paid at least annually to satisfy up to 10 percent of the salary level requirement.
  • Certain special salary levels for workers in U.S. territories and in the motion picture industry are also being updated.
The final rule goes into effect on January 1, 2020. The DOL estimates that an additional 1.2 million workers will become eligible for minimum wage and overtime under the FLSA as a result of the changes under the new rule.

If you have questions about how the new rule may impact your business, please contact Megan Erickson Moritz or any of our Employment & Labor Law Practice Group members for more information.

Wednesday, August 28, 2019

I-9 Checkup: Everything Old is New... for Now

By Elizabeth Coonan

United States Citizenship and Immigration Services (USCIS) announced this week that until further notice, employers should continue using the Form I-9 currently bearing expiration date of 8/31/2019, even after the expiration date has passed.
The agency will provide updated information about the new version of the Form I-9 as it becomes available.
If you have questions about I-9 compliance or how your business should respond to an inspection notice, contact Elizabeth Coonan at or the BrownWinick attorney with whom you work.

Friday, August 16, 2019


By Ann Holden Kendell

On August 12, 2019, the state of New York officially expanded its protections on unlawful harassment in the workplace. Some of the key changes include the following:
  • Elimination of the “severe” or “pervasive” standard. Employees only have to establish that they were subjected to “inferior terms, conditions or privileges of employment” as a result of their membership in a protected class. (Applies to alleged harassment based on an employee's membership in any protected class - not just sexual harassment.) 
  • Elimination of the “Faragher-Ellerth” affirmative defense. An employee’s unreasonable failure to follow the employer’s reporting procedures may still be used as evidence, but it will no longer end an employee’s claim.
  • No nondisclosure obligations. Settlement agreements on claims of unlawful discrimination cannot contain nondisclosure provisions unless the employee expressly wants such a provision to be included. (Previously only applied to settlement of sexual harassment claims.)
  • Non-employees are protected, too. “Non-employees” such as contractors, subcontractors, consultants, vendors or other parties engaged in a contractual relationship with the employer are protected under the anti-discrimination laws, too. 
  • More time to file claims. The time to file claims of sexual harassment is increased from one year to three years. (Implemented August 12, 2020.)

Should Midwest employers care what is happening in the Big Apple?
Under current federal laws, unlawful harassment is “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information … where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” See In short, unlawful harassment is a type of discrimination in employment that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and/or the Americans with Disabilities Act of 1990, (ADA).

Since the #MeToo movement, states other than New York have also made changes expanding protections beyond those provided by federal laws (California covered non-employees such as independent contractors, unpaid interns, and volunteers; Massachusetts passed a domestic workers bill of rights including protections against sexual harassment). Some states have also enacted mandatory harassment training laws (California, Connecticut, Delaware, Maine, and New York). While the legal standard for proving unlawful harassment in Iowa has not changed in reaction to the #MeToo movement, there have been several large verdicts awarded by Iowa juries on unlawful harassment and retaliation claims in the past few years.

The Importance of Training
In June 2016, the Select Task Force for the U.S. Equal Employment Opportunity Commission (EEOC) issued a report on its Study of Harassment in the Workplace. See The report noted that employer harassment training has been ineffective over the last 30 years and needs to change. A summary of the proposed practices can be found here:

One of the recommendations includes workplace “civility training.” As described in the report, this type of training “does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally.” The report noted the following regarding the importance of this training:

According to researchers, incivility is often an antecedent to workplace harassment, as it creates a climate of “general derision and disrespect” in which harassing behaviors are tolerated. For example, in studies of attorneys and court employees, researchers found significant correlations between incivility and gender harassment. Researchers also have found that uncivil behaviors can often “spiral” into harassing behaviors.
In response, many employers and employment attorneys have responded accordingly, incorporating civility training into regular workplace trainings. This type of training can reduce the instances of harassment under the “severe” or “pervasive” standard, as well as under the newer expanded standards for unlawful harassment. In short, an ounce of (effective) prevention is worth a pound of cure.

Wednesday, July 17, 2019

EEO Pay Data Collection Update: It is Time to Comply

By Elizabeth Coonan, BrownWinick attorney, with assistance from BrownWinick 2019 Summer Associate, Mariah Kauder

In 2017, the federal government suspended collection of Component 2 data from employers subject to EEO-1 reporting requirements. Component 2 data includes employee hours worked and pay information categorized by job type, race, ethnicity, and sex.  Following a contentious legal battle in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.), the Equal Employment Opportunity Commission (EEOC) is requiring Component 2 data be submitted by September 30, 2019. This includes data from calendar years 2017 and 2018. 

The Component 2 reporting requirement applies to all private employers, including federal contractors, with at least 100 employees. In addition, companies affiliated through common ownership or centralized management with other entities that bring the total number of employees up to 100 or more are also required to participate. Federal contractors with at least 50 employees and a federal government contract of $50,000 or more continue to be required to complete Component 1 of the EEO-1 form. However, this distinction does not apply to Component 2 reporting. The EEOC requires that submissions come through either the Component 2 EEO-1 Online Filling System or as an electronically transmitted data file. The online filing system became available on July 15th. Instructions for submission can be found on the EEOC’s website.

According to the EEOC, the information is used to inform civil rights enforcement and track employment patterns. Certain advocates of the data collection exercise contend that it will enable the EEOC to better identify and correct pay discrimination, while others feel it is just another administrative burden. Either way, the time is now for employers to identify where this information is stored and begin collecting it in order to meet the September 30th reporting deadline.

If you have questions about any of the information discussed above, please contact Elizabeth Coonan or another of BrownWinick’s Employment and Labor attorneys.

Wednesday, May 8, 2019

EEO-1 Pay Data Collection for 2017 and 2018

By Elizabeth A. Coonan

 The Equal Employment Opportunity Commission (EEOC) announced that employers must report pay data for 2017 and 2018 by September 30, 2019.  Pay data must be collected and reported with respect to race, sex and ethnicity. While the details regarding how to upload the required data have not yet been released, employers with 100 or more employees or federal contractors and subcontractors with 50 or more employees and at least $50,000 in federal contracts should be taking steps to ensure they have this data available for analysis and submission no later than September 30, 2019.  There is pending litigation that may affect the September 30 deadline. Check back here for updates and contact me or the BrownWinick Employment Attorney with whom you work for additional information.

Tuesday, April 2, 2019

DOL Proposes Updates to “Regular Rate” Under FLSA

By Megan Erickson Moritz

On March 28, 2019, the U.S. Department of Labor (DOL) announced another proposed rule to update regulations under the Fair Labor Standards Act (FLSA). The proposed rule would amend 29 CFR part 778 to revise the “regular rate” requirements under section 7(e) of the FLSA, 29 U.S.C. § 207(e). 

Under the default rule for calculating required overtime premium, employers must pay 1.5 times the “regular rate” of pay for all hours worked beyond 40 in a workweek -- by dividing total hours worked by total pay for each workweek. Under the FLSA, an employee’s regular rate pretty much includes all pay an employee earns (unless specifically excluded under the statute) – which can include much more than just his or her base hourly rate. For example, most bonuses, commissions, incentive pay, shift premiums, and other benefits generally need to be included in the regular rate.  This often complicates overtime calculations (especially quarterly or annual bonuses, which can require after-the-fact calculation of additional overtime), and can dissuade employers from offering perks to non-exempt employees.  According to the DOL, the new “proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.”

The good news for employers:  the DOL says it intends to “encourage employers to provide additional and more creative benefits without fear of costly litigation.” The proposed rule aims to clarify when unused paid leave, bona fide meal periods, “call back” pay, reimbursements, benefit plans, and other ancillary benefits may be excluded from the overtime calculation. Specifically, the DOL proposes that the regulations confirm that employers may exclude the following kinds of benefits from an employee’s regular rate:
  • Wellness programs, such as onsite specialist treatment, gym access and fitness classes, 
  •  Employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  •  Benefit plans, such as accident, unemployment, and legal services,
  • Tuition reimbursement or student debt repayment; and
  •  Certain reimbursed expenses.
Most bonuses will still need to be included in the overtime rate calculation.  However, the DOL’s proposed rule attempts to elaborate on the types of bonuses that are and are not discretionary (and therefore, excludable) -- hopefully offering a little more clarity for employers. 

The Notice of Proposed Rulemaking was published on March 29, 2019, and the agency is accepting public comments through May 28, 2019.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz ( or another member of the BrownWinick Employment Practice Group.

Thursday, March 7, 2019

CLIENT ALERT: DOL Proposes New $35,308 Salary Threshold For Overtime Exemption

By Megan Erickson Moritz

Today, the U.S. Department of Labor announced a Notice of Proposed Rulemaking, (again) proposing a hike to the salary threshold requirement under certain exemptions from the Fair Labor Standards Act (FLSA). In short, the DOL says the change "would make more than a million more American workers eligible for overtime."  The proposal seeks to establish a new salary requirement of $679 a week ($35,308 a year). The proposal does not call for automated adjustments to the salary level -- a question that had been hotly contested.

The DOL set the current salary threshold of $455 a week ($23,660 a year) in 2004.  More information about the proposed rule is available here.  Once the rule is published in the Federal Register, the public has 60 days to submit comments for consideration by the Agency.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz ( or another member of the BrownWinick Employment Practice Group.