Iowa Law Blog

Iowan Fights for Inheritance Rights of Daughter Conceived after Death of Father

MGardner@sullivan-ward.com (Matt Gardner) — Mon, 22 Jun 2009 11:47:18 -0600

A recent story in the Des Moines Register Dead Iowan fathers child; is daughter entitled to survivor benefits? illustrates the need for the laws, in Iowa and elsewhere, to catch up to today's technologies or at begin discussion of bioethics for certain medical situations that have significant legal impacts.

Patti Beeler is fighting for social security benefits for her daughter, who was conceived after the death of the girl's father from frozen sperm after the father died from cancer. This story is another example of why laws need to be updated to address these types of situations. This case is just one of several that will likely continue to emerge in the near future as courts from around the country have taken opposite positions as to whether a posthumously conceived child is entitled to inherit. Iowa laws currently do not permit such a child to inherit as an heir as the child was conceived after the biological parent's death. See Iowa Code 633.220. The social security administration looks to local law to determine who would qualify as a dependent for purposes of social security benefits. Thus, Iowa law is not favorable for this little girl, who will never know her father.

Using a Power of Attorney in Your Iowa Estate Plan

MGardner@sullivan-ward.com (Matt Gardner) — Mon, 22 Jun 2009 08:30:14 -0600

At Iowa Estate Plan, I have a post about the benefit of using a Power of Appointment in your estate plan.

Matt Gardner - Attorney and Now Author

MGardner@sullivan-ward.com (Matt Gardner) — Fri, 19 Jun 2009 15:09:21 -0600

Matt Gardner recently had a chapter published in the book titled "Estate Planning Client Strategies: Leading Lawyers on Understanding the Client's Goals Using Trusts Effectively, and Planning in a Changing Economic Climate (Inside the Minds)." If you are interested in purchasing, go here (none of the proceeds go to us).

Win or Lose: You've Got the Job

bclark@sullivan-ward.com (Benjamin Clark) — Fri, 19 Jun 2009 10:17:38 -0600

This post should be prefaced with the fact that I am an alumnus of the Univeristy of Iowa, but I will attempt to remain as objective as possible in my reporting.

Iowa State University recently finialized its contract with new Head Football coach Paul Rhoads. The contract, linked here by the Des Moines Register, has an interesting term that is not often found in coaching contracts. Under Article V of the contract, instances are provided that equate to "just cause" for termination, in other words, reasons the University can give to fire him. Paragraph 2(a) of this Article specifically lists some situations that cannot be considered just cause, including:

ii) Win-loss record or public unhappiness with win-loss record; or

iii) Other general displeasure at the direction or success of the football program.

Generally, win-loss records and displeasure with the direction of an athletic program are the main reasons coaches are fired by their university employers. It would be interesting to know at whose behest these clauses were added, and the policy behind them. It should be noted that the contract also lists a number of "just cause" reasons to fire Rhoads, and the University would likely be able to find separate reasoning to release him besides the win-loss record of the team.

At any rate, his job is safe for a while, even after September 12, 2009. Go Hawks.

Elizabeth Overton Quoted in Business Record

MGardner@sullivan-ward.com (Matt Gardner) — Thu, 04 Jun 2009 07:02:40 -0600

Sullivan & Ward's Liz Overton was quoted in the Des Moines Business Record concerning legal issues related to company furloughs. Company furloughs create a legal minefield Very good information and article related to company furloughs.

Des Moines Schools: Facebook Sleuths?

bclark@sullivan-ward.com (Benjamin Clark) — Thu, 21 May 2009 09:41:05 -0600

The Des Moines School Board voted 6-0 on Tuesday, May 19, 2009 to approve a tougher student conduct policy related to illegal activities and behavior. The policy will go into effect in the Fall of 2009, and will apply to students year-round. Opponents of the new changes have focused their attention on a particular part of the policy: The new code allows district officials to use information from social networking sites such as MySpace or Facebook as evidence to discipline students, even in the event the student is not charged by legal authorities.

The Des Moines Board policy certainly raises a number of questions about the authenticity of social networking information as evidence (Is a picture of a student-athlete holding a red Solo cup of Pepsi at a party going to get him or her suspended?) (What if a beer is Photoshopped into the picture?) (What if the picture was taken before the policy was in effect?); the availability of resources to enforce the new policy (Will the district employ an individual to scour the Internet in search of allegedly damning photos?); and whether investigations will be commenced by school administrators, by an opposing team a few days before the big game, or by a parent of a student-athlete from the same team (Is this a tool for the district or does it promote everybody to become a whistle-blower?). Additionally, the moral/social debate about parental decision-making overruled by the school district is alive and well following the board's actions. From a legal perspective, however, high school extra-curricular activities are a privilege, not a right. Accordingly, the school district is likely entitled to use social networking sites as a means to enforce its policies.

Also, look for students to simply change their habits. Many will avoid situations where alcohol or drugs are involved, while others may not abate their behavior, but will just take the photos off the Internet.

The introduction of Internet information as evidence, especially found on Facebook and MySpace, is a fascinating legal phenomenon. The information is plentiful and can provide tremendous assistance to a fact-finder, but its authenticity is highly questionable.

Casey's Settlement for Overtime Wages

MGardner@sullivan-ward.com (Matt Gardner) — Thu, 14 May 2009 08:52:56 -0600

The Des Moines Register is reporting that local class action lawsuit against Casey's General Stores goes to a federal judge for approval of a settlement entered into with the parties. Casey's would agree to pay $12.1 million for employees who were required to work off-the-clock, including cooks and assistant managers.

This case continues to remind employers that requiring non-exempt employees to work overtime needs to be properly compensated. In fact, the argument has been successfully made in situations where the employer did not even authorize the overtime, yet still was required to pay overtime.

President Obama Encourages Unemployment Compensation Changes

eoverton@sullivan-ward.com (Liz Overton) — Fri, 08 May 2009 15:35:11 -0600

Today President Obama announced a plan that will encourage unemployed workers to enroll in educational and retraining programs. The President's plan encourages states to update their unemployment compensation rules so that unemployed workers taking advantage of the program do not lose their unemployment compensation benefits. Iowa's current unemployment compensation scheme has such a speed-bump.

Under Iowa Code § 96.4 an unemployed individual is eligible for unemployment compensation benefits if the individual is "able to work, is available for work, and is earnestly and actively seeking work." The Iowa Administrative Code state that full-time students "devoting the major portion of their time and effort to their studies are not "available" for work as required by the Iowa Code unless they are "available to the same degree and to the same extent as they accrued wage credits." Thus, they are ineligible to receive unemployment benefits. Exceptions include an indivdual in training with the approval of the director and training approved under 19 U.S.C. § 2296(a), the Trade Act of 1974, Relief from Injury Caused by Import Competition.

President Obama's plan only "strongly encourages" states to alter ther current rules. With Iowa's unemployment rate still approximately 3.3% below the national rate, (according to March 2009 rates) I don't anticipate many changes in Iowa's rules in the near future.

Alimony

Skain@sullivan-ward.com (Samantha Kain) — Fri, 08 May 2009 14:55:04 -0600

Alimony can be awarded to either a husband or a wife for a limited or indefinite length of time. In Iowa, there are three different kinds of alimony - Traditional, Rehabilitative and Reimbursement. Traditional alimony continues as long as the dependent spouse lives and remains unmarried. It is generally awarded after a long marriage where one spouse has been dependent on the earning efforts of the other spouse, has a mental or physical disability, does not have the ability to become self-sufficient, or has a substantially lower earning capacity. Rehabilitative alimony is designed to allow the recipient spouse to become self-supporting and is for a shorter, defined period of time. Finally, Reimbursement alimony is ordered where one spouse assisted the other to obtain an advanced degree, professional license or otherwise supported their career advancements. Typically, Traditional and Rehabilitative alimony terminate when the recipient remarries or dies, but Reimbursement alimony does not terminate upon remarriage.

Pursuant to Iowa Code Section 598.21A(1), in entering an alimony award the Court will take into consideration the following:

a. The length of the marriage;

b. The age and physical and emotional health of the parties;

c. The distribution of property made pursuant to section
598.21;

d. The educational level of each party at the time of
marriage and at the time the action is commenced;

e. The earning capacity of the party seeking maintenance,
      including educational background, training, employment skills, work
      experience, length of absence from the job market, responsibilities
      for children under either an award of custody or physical care, and
      the time and expense necessary to acquire sufficient education or
      training to enable the party to find appropriate employment;

f.   The feasibility of the party seeking maintenance becoming
      self-supporting at a standard of living reasonably comparable to that
      enjoyed during the marriage, and the length of time necessary to
      achieve this goal;

g. The tax consequences to each party;

h. Any mutual agreement made by the parties concerning
financial or service contributions by one party with the expectation
of future reciprocation or compensation by the other party;

i. The provisions of an antenuptial agreement; and

j. Other factors the court may determine to be relevant in an
individual case.

Use of Mediation in Family Law Disputes

Skain@sullivan-ward.com (Samantha Kain) — Mon, 04 May 2009 16:12:32 -0600

The use of mediation in Iowa is becoming an increasingly popular way of resolving family law disputes. In mediation, a neutral third party (the mediator) assists the parties in reaching an agreement regarding some or all of the issues in their case. The mediator is chosen by agreement of the parties and while he/she is not a legal advisor for either side, an effective mediator may raise issues not previously considered. Overall, the mediation process tends to be less adversarial, allows the parties greater control over the outcome of their case, and saves time and money.

Either party can request to participate in mediation at anytime (Iowa Code Section 598.7). The best time to mediate; however, is after the parties have had an opportunity to fully identify all of the unresolved issues in their case. The Court can also order the parties to participate in mediation. If ordered to participate in mediation, parties can request a waiver where there is a history of domestic violence or abuse in the relationship (Iowa Code Section 598.41).

If the parties are unable to reach an agreement at mediation, the parties can then proceed as if mediation had never taken place. This usually involves requesting the Court to make a decision on any unresolved issues at a hearing or trial.

U.S. Supreme Court Reduces Corporate Liability in Superfund Ruling

bclark@sullivan-ward.com (Benjamin Clark) — Mon, 04 May 2009 15:26:50 -0600

The U.S. Supreme Court issued an opinion today that could potentially limit corporate liability in environmental cleanup cases. Under Superfund, the Federal Policy that directs the cleanup and cost recovery for abandoned contaminated toxic waste sites, the Federal government undertakes expensive and time-consuming cleanup efforts. Since there were no Federal environmental laws until the 1970's, many of these contaminated sites are found after decades of being buried underground. During and after cleanup, the goverment allocates responsibility, and the corresponding share of the costs, to all parties that had a part in the contamination.

In the present case, Burlington Northern and Santa Fe Railroads et al. v. U.S., in the 1960's and 70's a chemical distribution company purchased a chemical called D-D from Shell Oil Company. Much of this chemical was spilled and led to the contamination of the area, but the company is now defunct. The government attempted to allocate 6% of the cleanup costs to Shell Oil, under a Superfund theory called "arranger liabilty." This theory reasons that if a company arranges for the disposal of a hazardous waste, the company should be responsible for contamination cleanup.

In the U.S. Supreme Court's 8-1 Opinion, written by Justice John Paul Stevens, since CERCLA does not specifically define what it means to "arrang[e] for" disposal of a hazardous substance, the phrase should be given its ordinary meaning. In common parlance, “arrange” implies action directed to a specific purpose. Thus, to qualify as an arranger, Shell Oil must have entered into D-D sales with the intent that at least a portion of the product be disposed of during the transfer process. Since there was no evidence of such an agreement, The Supreme Court found that Shell Oil had no liability as an arranger.

Iowa Supreme Court Rules in Gay Marriage Case

Skain@sullivan-ward.com (Samantha Kain) — Fri, 03 Apr 2009 09:23:48 -0600

The Iowa Supreme Court held in an unanimous decision today that the Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution. The decision makes Iowa the first Midwestern state, and the forth nationwide, to allow same-sex marriages. Pursuant to the ruling of the Court, same-sex marriages will be legal beginning on April 24, 2009.

The full ruling is available on-line at : www.iowacourts.gov/supreme_court

New Child Support Guidelines

Skain@sullivan-ward.com (Samantha Kain) — Tue, 10 Mar 2009 14:30:23 -0600

The Iowa Supreme Court has adopted new child support guidelines. The guidelines will go into effect July 1, 2009 and are based upon the "pure income shares model of child support." More information about the new guidelines is available on the Iowa Supreme Court's website: www.iowacourts.gov/news_service/news_releases/newsitem362/

Will Contests in Iowa

MGardner@sullivan-ward.com (Matt Gardner) — Sun, 01 Mar 2009 11:08:05 -0600

In Iowa, there are a few ways to challenge a will as not being the valid distribution of someones estate after their death. The two most common reasons are (1) undue influence and (2) lack of mental capacity. Each of the challenges to a will have a different set of requirements. The person(s) challenging the will has the responsibility to prove certain requirements to have the will set-aside. The evidence will be presented to either a judge or a jury. The elements of each challenge are shown below.

Undue Influence - Undue influence is the situation where someone improperly places their intentions for distribution under a will in lieu of the person actually signing the will. For example, placing a gun to someones head and having them sign their will is an extreme example. What about the situation where one child is helping a parent in all matters of their life, including taking them to the attorney's office to sign the will, and the will leaves a greater part of the estate to that particular child. In order to assert a claim of undue influence the person challenging the will must prove (1) the person signing the will (called the testator) was susceptible to undue influence, (2) the influencer had an opportunity to exercise undue influence and effect a wrongful purpose, (3) the influencer had a disposition to unduly influence to procure an improper favor, and (4) the result was clearly the effect of undue influence. It is not unusual for circumstantial evidence evidence to be used to support a will contest as direct evidence for undue influence is difficult to produce. Also, it is not necessary to show that a person lacks mental capacity, although such evidence of diminished capacity shows their susceptibility to influence.
Lack of Capacity - If a person does not have the necessary mental capacity to execute a will, the will can be challenged as an invalid document. The level of competency to sign a will is a low level - lower level than that necessary to sign a legal contract. Specifically, a person must know (1) they are making a will, (2) appreciate the extent of their assets, (3) identify their natural heirs, and (4) understand how the will distributes their assets. A person who suffers from a mental disease or defect, such as Alzheimer's or other form of dementia, may still possess sufficient capacity as long as their compromised mental status does not influence the will.

COBRA Changes in the Stimulus Package

eoverton@sullivan-ward.com (Liz Overton) — Tue, 17 Feb 2009 08:46:25 -0600

The American Recovery and Reinvestment Act of 2009, otherwise known as the stimulus package, will be signed today by President Barack Obama. The stimulus package creates many changes that employers should become aware of. One significant change, however, is COBRA coverage and notices. The Ohio Employer’s Law Blog sets forth the changes made by the stimulus package to COBRA. The changes will require employers to amend their current COBRA notices and to re-notify employees terminated between September 1, 2008 and February 17, 2009.

Protect Your Employees' Status During A Furlough

eoverton@sullivan-ward.com (Liz Overton) — Thu, 12 Feb 2009 15:08:44 -0600

In the wake of tough economic times, many companies are exploring alternative cost cutting methods. One method is requiring employee furloughs. Employers are using required furloughs rather than terminations as a cost-cutting measure. If you are thinking about using a furlough at your company remember the following rules regarding non-exempt and exempt employees:

· Non-exempt employees must be paid only for actual hours worked. An employer may send non-exempt employees home as a cost-cutting measure without worrying much about the legal problems. You will need to review any contracts, including collective bargaining agreements, your company may have with non-exempt employees before implementing a furlough to ensure that you are not violating any of the provisions contained within the agreement.

· Exempt employees must receive full salary for any week in which work is performed, without regard to the number of days or hours worked. If any exempt employee does not receive full salary for every workweek in which the employee performs any work, exempt status is lost and the employee is entitled to overtime pay. In general, furloughs for exempt employees should be scheduled in full workweek increments to protect an employee’s exempt status.

These should be considered general rules. If you have specific questions about implementing a furlough plan please contact your attorney.

A Modern Case of Involutary Servitude

eoverton@sullivan-ward.com (Liz Overton) — Tue, 03 Feb 2009 13:08:16 -0600

The Thirteenth Amendment, which prohibits slavery and involuntary servitude except in certain circumstances, is rarely implicated in the modern employment law world. So I was very interested when I read about Vinluan v. Doyle, --- N.Y.S.2d ---, 2009 WL 93065 (Jan. 13, 2009), a case out of New York, was decided under the Thirteenth Amendment.

Ten nurses from the Philippines were hired to work in nursing homes caring for chronically ill children dependent on ventilators. They each signed employment contracts which promised free travel to the U.S., two months of free housing and medical coverage, training and assistance in obtaining legal residency and nursing licenses. In exchange, the nurses made a three-year commitment to the nursing home. Soon after their arrival the nurses began complaining that the terms of the contact had been breached. Nursing licenses had not been obtained. The housing provided was inadequate—one bathroom, inadequate heat, no telephone service. Nurses had not been fully compensated for all hours worked. The nurses found attorney Felix Vinluan and met with him to discuss their options. He advised them that under the New York Education Law they could not leave their positions during a shift when they were on duty, but had a right to resign after their shifts had ended. The nurses resigned the following day either at the end of their shift or in advance of their shift. They all used an identical form letter they agreed upon together. No patient was deprived of nursing care services.

In response to the mass resignation, the employer sued the nurses and attorney Vinluan and filed a complaint with the New York State Education Department. The nurses and Vinluan were also criminally charged with conspiracy to commit endangerment of a child and a physically disabled person. It was the criminal charges against the nurses and Vinluan that implicated the Thirteenth Amendment. The nurses contended that subjecting them to criminal sanctions for their act of resigning effectively compels them to remain at their jobs in violation of the Thirteenth Amendment. The nursing home contended that the resignations created an imminent threat to the well-being of the children and fell within the “exceptional circumstances” exception to the Thirteenth Amendment. The court disagreed with the nursing home and prohibited the prosecutor from pursing the criminal charges. The nurses were engaged in private employment, not public service; they did not have unique or specialized skills; and there was no threat to the health of the children. The attorney was also cleared of any wrong doing under the First Amendment.

Photo on Flickr by eo was taken

Lilly Ledbetter Fair Pay Act

eoverton@sullivan-ward.com (Liz Overton) — Thu, 29 Jan 2009 16:33:49 -0600

The Lilly Ledbetter Fair Pay Act was signed by President Obama today. The full text of the bill can be found here. The Human Resources News blog summarizes the Act as follows:

Specifically, the Fair Pay Act amends Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) to declare that an unlawful employment practice occurs not only upon adoption of a discriminatory compensation decision or practice but also when the employee becomes subject to the decision or practice as well as each additional application of the decision or practice. In other words, the 180-day statute of limitations will now be extended on every occurrence of an unlawful employment practice, including issuance of paychecks.

The Act was passed in response to the Supreme Court decision which dismissed Lilly Ledbetter's case against her employer. The bill is retroactive to May 27, 2007 (the date of the decision) but does not revive claims that have already been dismissed.

To Cash the Check or Not to Cash the Check

kkrudenier@sullivan-ward.com (Kyle Kruidenier) — Thu, 29 Jan 2009 09:37:57 -0600

Whether you are a seasoned business owner or a relative new-comer, the issue either has or will come up sooner or later. A customer tenders payment of a sum less then the full amount due and owing for services rendered yet the check is marked "paid in full," "acceptance of this check is payment in full," or something similar.

The question is, what is the effect of cashing the check on the customer's account? Under the Uniform Commercial Code (UCC) if there is bona fide dispute between the parties and the business owner accepts and cashes the check an accord and satisfaction has occurred and the checkwriter will have a defense if the business owner would happen to take legal action for the difference.

So, under the UCC, if there is a bona fide dispute as to the amount owed by the consumer and the check is conspicuously marked "paid in full" or something similar then the business owner can do one of two things. He or she can either reject the payment and send the check back to the consumer or he or she can cash the check, essentially accepting the consumer's settlement offer and wiping out the rest of the debt.

WARN

eoverton@sullivan-ward.com (Liz Overton) — Tue, 27 Jan 2009 13:31:52 -0600

With massive layoffs happening daily, even in Iowa (e.g. Microsoft, Electrolux, Meredith) it’s important to know your rights during a mass layoff or closing under Worker Adjustment and Retraining Notification Act (WARN).

What is WARN? WARN is a federal law which offers protection to employees by requiring employers to provide written notice 60 days in advance of covered plant closings and covered mass layoffs.

Is my employer covered by WARN? Businesses with at least 100 full-time employees or a combination of at least 100 part-time and full-time employees who work a total of 4000 hours per week are covered by WARN.

What is a “mass layoff” or “plant closing”? A mass layoff or plant closing occurs when:

· at least 50 employees are laid off during a 30-day period, if the laid-off employees made up at least one-third of the workforce

· 500 employees are laid off during a 30-day period, no matter how large the workforce; or

· an entire work site is closed down and at least 50 employees are laid off during a 30-day period.

What happens if WARN is violated? If a business violates the WARN Act the business is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days.

It is important to contact your attorney to discuss your specific situation if you feel your employer has violated the WARN act.