Workplace Wise - Iowa Employment Law Attorneys

Wednesday, September 12, 2018

DOL Releases Updated FMLA Forms

By: Megan Erickson Moritz

Last week, the Wage and Hour Division of the United States Department of Labor finally released its updated Family and Medical Leave Act forms. However, I use the term "updated" here loosely, as there were no meaningful changes to the substance of these forms. Nevertheless, if you use the DOL's model forms (which we typically encourage employers to do), you should still use the updated forms going forward. (Look for the "Expires: 8/31/2021" note near the top right corner of the documents to be sure you have the most current version.) The DOL's forms are available here:
The FMLA can be a complicated law to navigate. For that reason, take this opportunity to review the forms for a primer / refresher on the FMLA process, the notice requirements, and the rights and responsibilities of both employers and employees. If you do business in a state that has its own state-law counterpart to the FMLA (sometimes called a "mini FMLA"), be sure you're meeting the requirements of both state and federal laws. If you have questions about the FMLA, please contact Megan Moritz ( or another member of the BrownWinick Employment Practice Group.

Tuesday, June 5, 2018

Epic Systems v. Lewis: Arbitration Agreements and Employers' New, Protective Shield from Employee Lawsuits

By Megan Moritz and Ryan Shellady (BrownWinick 2018 Summer Law Clerk)


A recent 5-4 Supreme Court decision marks a major victory for employers interested in a new tool for their arsenal to protect their businesses from potential class action litigation.

The Ruling

The case, Epic Systems Corp. v. Lewis, largely pitted the Federal Arbitration Act (“FAA”) against the National Labor Relations Act (“NLRA”). The FAA requires courts to enforce arbitration agreements according to their terms; the NLRA provides that employees have a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The issue facing the Court:   Whether the NLRA’s protection of concerted activity trumps the FAA’s dictate to enforce arbitration agreements.

Epic Systems involved a group of employees, each of whom had entered into contracts with their employers under which he or she agreed to individualized arbitration for any and all work-related disputes that might arise during their employment. The employees in the underlying cases nevertheless attempted to litigate wage and hour claims in class or collective court actions.

The employers wanted the court cases thrown out per the contractual agreement to arbitrate, pointing to the FAA’s broad pronouncement that arbitration agreements should generally be enforced as written. The employees responded that the FAA’s so-called “savings clause” does not require enforcement of an agreement to arbitrate if that would violate some other federal law. They argued that conditioning employment upon an employee’s agreement to individualized arbitration violates section 7 of the NLRA because the employers were effectively preventing them from engaging in “concerted activity” of class or collective litigation.

The Court concluded that the NLRA does not displace the FAA, and the Court did not believe Congress intended the NLRA to specifically protect a right to class or collective actions. Where employers and employees have agreed to individualized arbitration, employees’ rights to engage in concerted activity under the NLRA are not infringed by enforcing the arbitration agreement.

The Takeaway

Historically, the National Labor Relations Board general counsel, as well as many courts, generally agreed that arbitration agreements providing for individualized proceedings were enforceable. In 2012, the NLRB reversed course – ruling that the NLRA essentially invalidated the FAA in this kind of case.  In the last two years, a number of courts have either agreed with or deferred to the Board’s 2012 decision. The Epic Systems case resolves any remaining confusion, and clarifies that nothing in the NLRA displaces the FAA, and the NLRA does not promise employees a right to join together to pursue legal actions – either in court or in arbitration.

If you have questions or would like to discuss whether including an arbitration provision in one of your company’s employment contracts is the best decision for your business , please contact Megan Moritz (, Elizabeth Coonan ( or another member of the BrownWinick Employment Practice Group.

Thursday, May 24, 2018

Immigration and Customs Enforcement (ICE) is Cracking Down on Employers: Expect I-9 Audits This Summer and Beyond

By Elizabeth Coonan

I-9 audits are on the rise. U.S. Immigration and Customs Enforcement (ICE) – the agency charged with enforcing U.S. Immigration laws - reports that between October 1, 2017 and May 4, 2018, the agency initiated approximately 2,282 employer audits (an average of about 321 audits per month). Contrast that with the prior fiscal year figures (1,360 employer audits, averaging about113 audits per month) and you can see where we the administration is heading.

If a nearly 300% increase in employer audits isn’t enough of a signal, try this:  ICE recently reported that it plans to open over 5,000 additional audits this summer alone, with a goal of reaching 15,000 I-9 audits per year. Industries most likely to be targeted are those with a history of hiring undocumented workers. Historical targets include companies in the agriculture, construction, leisure and hospitality, and manufacturing industries. As a consequence, employers should be prepared to conduct an internal audit and review internal recordkeeping practices to ensure compliance with federal law. Pay close attention to the completeness and accuracy of your forms. Common mistakes include missing information, failure to obtain signatures, failure to list the date of hire, among others. Not catching these mistakes can subject your company to fines and penalties.

Things to know:

Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from hiring unauthorized aliens. To that end, the law requires employers to complete the Form I-9 for all employees hired on or after November 6, 1986. These forms must be kept on file for a period of three (3) years from the date of hire or one year from the date of termination, whichever is later.

Generally, employers will receive just three (3) days’ notice of an impending I-9 audit, during which time the employer must gather and produce an I-9 for existing (and sometimes former) employees. Additional documents such as organizational information, payroll records and employee rosters are also typically requested, so be prepared.

If you receive a Notice of Inspection, be certain to contact your attorney immediately as time is of the essence.

If you have questions or require assistance in reviewing company policies and procedures, please contact Elizabeth Coonan ( or another member of the BrownWinick Employment Practice Group.

Monday, March 19, 2018

Are You Ready if a Sexual Harassment Scandal Hits Your Business? - Part III

By Megan Erickson Moritz & Mike Dee

Part III - Responding to potential issues

As outlined in our earlier posts, business leaders are subject to increasing scrutiny in light of the national dialogue happening right now. This movement is not limited to the arena of celebrities and politicians. Does your business know what to do if allegations are lodged against your CEO or other critical managers? 

Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of blog posts focused on relevant considerations for employers. So far, we’ve discussed the basics of requiredanti-harassment policies and reporting procedures. We’ve also covered a number of considerations when it comes to implementing thosepolicies, to ensure your practices conform to the written policies and procedures. Now we’ll shift our focus to discuss some steps to take when issues come to light. Below we outline some considerations as you approach investigations into potential workplace problems.

1.  It’s important to train managers, supervisors, and other decision-makers so they understand how to identify potential red flags.  If any supervisor or decision-maker becomes aware of a complaint or potential misconduct, even if he or she learns of it indirectly rather than by someone making a formal complaint, the company is “on notice” of the problem and needs to take steps to prevent further issues. Therefore, supervisors and decision-makers must be trained to understand what triggers their responsibility to report allegations of possible harassment or discrimination.
  - Practical Pointer:  Under a typical anti-harassment/discrimination policy, the person(s) to whom to report allegations is clearly set forth, and involves Human Resources (or other trained decision-maker – but for purposes of this article, we’ll refer to this trained individual as “HR”).  Consistency in how your business handles these complaints is absolutely critical.  Standard requests for information in a lawsuit involve how your company has handled other similar complaints (and sometimes not-so-similar complaints), so having the same person(s) handle these issues is strongly encouraged.  If a complaint or potential misconduct involves an officer, executive, or other C-Suite employee, especially if that person is the supervisor of whoever receives and handles these complaints, your business should have a plan in place to involve legal counsel who has experience with workplace issues.

2.  If an employee raises a potential issue, it is important managers are trained not to make any assumptions or jump to conclusions. Managers should encourage the employee to speak with HR, but they shouldn’t require it.  Regardless of whether an employee speaks with HR, once anyone on management is aware of the issue, the company is deemed to know about it and that manager MUST follow the reporting requirements and make it known.  Even if the manager doesn’t know who the employee’s complaint might involve, report the information and let the process move forward from there.    
  - Practical Pointer:  When a potential workplace issue comes to light, it is particularly important that management be mindful about what they put in writing. If a decision-maker has not been trained on how to appropriately handle an internal complaint, asking him or her to prepare documentation could be exacerbating the potential legal exposure. If a decision-maker is relaying sensitive information and also has questions about legal liability, they should copy in-house or outside legal counsel to protect those exchanges as privileged.

3.  When an issue comes to light, some level of investigation is likely appropriate. A business should take a thoughtful approach to the planning process.  One of the first questions you will need to consider/decide: who should conduct the investigation? Assuming a complaint involves an upper-level executive, it would be wise to engage your outside legal counsel to conduct or arrange for an independent, outside investigation.  
  - Practical Pointer:  If litigation ensues, remember that the company may need to disclose details about the investigation in support of its defense, meaning the investigator is likely going to be a witness.  We often arrange for legal counsel at another firm to conduct an investigation for our clients, when outside investigations are warranted; which allows us to continue representing our client without risk of waiving our privileged communications or having to withdraw as counsel because we are witnesses.  (Similarly, sometimes we are engaged by a company for the limited purpose of conducting an investigation.)

4.  An investigation should yield findings and conclusions about the underlying allegations, which are usually delivered in a final report from the investigator. Appropriate discipline, if warranted by the investigation’s results, MUST ensue. It is a critically important defense to a company that is sued by an employee for harassment or discrimination that a thorough investigation took place, followed by appropriate corrective/remedial actions. 
  - Practical Pointer:  Deciding the appropriate response to an investigation depends on numerous factors, such as the findings/conclusions of the investigation (Corroborated? Negated? Inconclusive?), any prior misconduct by the accused, past practices of the company, relative positions of the involved parties, and input from HR and legal counsel.  

A company cannot be afraid to implement appropriate discipline when appropriate, which is why every investigation must be conducted impartially and professionally, in an effort to determine exactly what happened.  The more transparent the process, coupled with an appropriate response to its results, the better equipped a business will be to mitigate disastrous consequences should the national spotlight on harassment hit your company.

If you have questions about or would like to discuss coordinating a potential workplace training or investigation, please contact Megan Moritz, Mike Dee, or another member of the Employment Law Practice Group.

Wednesday, March 14, 2018

US Department of Labor Announced New Payroll Audit Independent Investigation (PAID) Program

By Megan Erickson Moritz

The Wage and Hour Division (WHD) of the federal Department of Labor (DOL) announced a new pilot program aimed to help resolve potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA).  More information about the Payroll Audit Independent Determination (PAID) program will be available in the coming weeks, but the DOL has given some preliminary information about the program’s general framework. 

The DOL intends for this self-audit program to help employers proactively resolve potential FLSA violations.  The goals include resolving potential minimum wage and overtime issues more quickly, without (expensive) litigation, and to improve compliance generally. This new program will be tested for approximately six months, at which time the WHD will consider its effectiveness, potential changes, and whether the program will stick around.

So what incentive does an employer have to participate, you ask? If an employer participates and cooperates with the DOL to resolve any wage problems, the employer will still be required to pay all back wages due, but will not be assessed additional liquidated damages or civil monetary penalties.  Additionally, the preliminary materials suggest that an employee who accepts payment of back wages under the PAID program may be required sign a release of claims (although it will be specific to the identified violations and period of time for which the back wages are being paid).  

Employers who want to participate must first conduct a thorough self-audit to identify potential violations, affected employees, and relevant time frames. Thereafter, the employer may contact the DOL and ask to participate in the PAID program.  Assuming the DOL grants the request, it will ask the employer for additional information about the calculations and violations, and certifications that the employer reviewed various compliance materials and information, is not involved in any kind of pay litigation or dispute, and will make adjustments to comply going forward.  

If you have questions about the DOL’s new PAID program, coordinating an internal review or wage and hour audit, or related issues, contact wage and hour attorney, Megan Moritz, or another member of the Employment Practice Group, and we would be happy to assist you.