1 Last Updated: January 2010 IOWA EMPLOYMENT LAW The Davis Brown Law Firm Table of Contents 1. Overview 2. General Issues 3. Employment Policies and Employee Handbooks 4. Hiring Process 5. Compensation and Benefits 6. Termination of Employment 7. Immigration 8. Federal Law 9. Other State Specific Considerations 10. Employment Law Resources 1. Overview It is critical that social sector organizations familiarize themselves with relevant employment laws that affect their employees and their organization. Often social sector organizations begin with like-minded persons informally coming together for the purpose of addressing a challenging social problem. However, regardless of the ties that bind those who work together on a social mission, the social sector organization must comply with applicable employment laws and implement relevant policies and procedures. The following provides an overview of federal and Iowa employment laws that could apply to social sector organizations and their employees located in Iowa. This overview does not provide a complete and comprehensive analysis of all potentially applicable employment laws in Iowa and the U.S. and it should not be acted upon without specific legal advice based on particular situation. Employment laws can differ greatly by state; if your organization and employees are located in another state, you should consult the employment law pages of LawForChange for that state.
2 2. General Issues a. At Will Employment The conventional relationship between an employer and an employee hired for an indefinite period of time is called employment at will. Under this arrangement and setting aside the potential applicability of a number of special laws, either the employer or the employee may terminate the employment relationship at any time, with or without cause, and with or without advance notice. In the absence of a written contract or other evidence indicating that an employee may be terminated only for cause, employment is generally presumed to be at will. It is important to remember, however, that there are a number of special laws, both federal and state, that limit an employer s unfettered right to terminate traditional at will employees. These laws, many of which are identified and discussed below, prevent employers from firing any employee, whether at will or not, for illegal reasons (e.g., discriminatory reasons or engaging in certain activities protected by law). b. Temporary Employment and Consulting Relationships In addition to traditional at will employees or contract employees, many employers may use the services of temporary employees, independent contractors, or consultants (and employees of independent contractors or consultants). When an employer hires an employee for a temporary period or for a season, the temporary employee is still an at will employee of the employer, and the relationship is governed by the same laws as those applicable to at will employees. As with permanent employees, legally mandated benefits, such as workers compensation insurance and unemployment insurance, must be offered to temporary employees. Optional benefits, such as 401(k) plans, need not be offered to temporary employees. An independent contractor or consultant is not considered an employee of the employer. Instead, an individual independent contractor is self-employed, and payments made to the independent contractor are considered contract payments rather than wages. The U.S. Internal Revenue Service ( IRS ) and other governmental agencies have a variety of tests for determining whether a worker is an employee or an independent contractor, which, despite variations among the tests, tend to share the same primary factors. Essentially, workers who are performing the same job and performing under the same supervision as regular employees are usually deemed to be employees. The Iowa Supreme Court has
3 adopted eight broad factors to consider in determining whether a worker is an independent contractor. The factors the court weighs in determining whether an independent contractor relationship exists are: contracts with individuals; nature of work to be performed; ability to hire others; tools used; control of work; length of employment; method of payment and nature of worker and business of contracting party. The consequences of incorrectly classifying an employee as an independent contractor can be far-reaching and expensive (e.g., liability for unpaid payroll taxes and penalties, administrative claims for benefits provided to regular employees, liability for unpaid unemployment insurance and workers compensation premiums, increased exposure to governmental audits, and potential exposure to employment-related civil suits and administrative claims). c. Employment Agreements While it is not required or necessary to enter into an employment agreement with any employee, social sector organizations may wish to enter into written employment agreements with one or more key leaders. If an organization chooses to enter into an employment agreement with a particular employee, such agreements typically spell out the term of employment (even if it is at will ), duties, compensation and circumstances under which the agreement may be terminated by either party. In addition, such agreements often contain provisions requiring key employees to keep information confidential even after they leave employment and barring them from becoming employed by certain competing organizations for a limited period of time following termination. The provisions of these agreements and whether any such agreement should be used should be discussed with an employment attorney before they are presented to an employee or prospective employee. d. Government Contractors A number of laws impose specific requirements on employers who contract with the government or a government-funded agency and on employers who receive grants or other funding from the government. These laws include special equal opportunity laws, affirmative action laws, prevailing wage laws, and drugfree workplace laws. The application of the laws depends on the value of the contract or funding and/or the number of employees in the company.
4 e. Employee Records In general, under federal laws, an employer is either required to or should maintain the following records on each employee for these minimum time frames: 2 years documents related to hiring, accommodations, promotions, discipline, and discharge, including: job applications, resumes, or any other form of employment inquiry whenever submitted in response to an advertisement or notice of job opening, including records pertaining to failure or refusal to hire any individual; records relating to promotion, demotion, transfer, selection for training or apprenticeship, layoff, recall, or discharge of any employee; job orders submitted to an employment agency or labor organization for recruitment of personnel; test papers completed by applicants or candidates for any position; results of any physical examination if such is considered in connection with a personnel action; advertisements or notices relating to job openings, promotions, training, or opportunities for overtime work; requests for reasonable accommodation for disability or religious observance and what accommodation, if any was granted. This will cover the limitations period of claims under Title VII of the Civil Rights Act of 1964 ( Title VII ), the Americans with Disabilities Act ( ADA ) and the Age Discrimination in Employment Act ( ADEA ) (see Section 8 below for summaries of these and other federal laws). Note that it may not cover late discovered claims. 3 years Payroll records listing employee s full name, home address, date of birth, sex (for Equal Pay Act purposes), occupation/job title, time of day and day of week on which workweek begins, regular rate of pay, the basis for determining regular rate of pay (including any payments excluded from the regular rate of pay), straight-time earnings, overtime premium earnings, additions/subtractions from wages for each pay period, total wages for each pay period, and date of payment and pay period covered by each payment. This is for claims under the ADEA and Fair Labor Standards Act ( FLSA ). 2 years Supplementary payroll records such as basic time sheets or production records that contain the daily starting and stopping times of individual employees and/or amount produced that day, wage rate tables for computing piece rates or other rates used in computing straight-time earnings, wages, salary, or overtime, and any records needed to explain the wage rate differential based on sex within the establishment (e.g., production, seniority, or other bona fide business criteria). Such information may be necessary in responding to claims under the FLSA, including the Equal Pay Act.
5 1 year after plan terminates Employee benefit plan records including: pension plans, insurance plans, seniority systems, merit systems. This includes benefit plans covered by ERISA as well as set plans for advancement, layoff, or reinstatement based on seniority, merit, or some other formula which will be pertinent to either an issue under a collective bargaining agreement or claims of age or other discrimination. 3 years Records related to qualified family and medical leave including: basic payroll and employee data (used to determine qualification for protection under the Family Medical Leave Act ( FMLA )), dates and hours FMLA leave is taken, hours worked in 12 months prior to start of leave, copies of employee notices furnished to employer, copies of notices provided to employee of rights and responsibilities under FMLA, employer polices applicable to use of family and medical leave, documents verifying premium payments of employee benefits (both employer paid and employee portion of premium), records of any disputes with employees over use of FMLA leave. These documents will assist in supporting compliance with FMLA. However, FMLA time worked may be calculated over a seven-year period. 30 years Records of employee exposures. Such records are required by the Occupational Safety and Health Act ( OSHA ). Some toxic substance exposures may require that documents be kept indefinitely. 5 years Occupational illness or injury records. These records, required by OSHA, should be kept for 5 years after the year in which the injury was sustained or treatment ended, whichever is longer. 3 years or 1 year after termination I-9 Employment Eligibility Verification Form. These forms must be kept for a minimum of 3 years or 1 year after the employee s employment ends, whichever is longer. 4 years Tax records related to income tax withholdings. This is required by the Federal Insurance Contribution Act and the Federal Unemployment Tax Act. At a minimum, social sector organizations should maintain one or more personnel files for each employee, containing any offer letters and agreements signed by the employee, required wage and hour records, records regarding promotion, additional compensation, termination, disciplinary action, and any documents used to determine the employee s qualifications for employment. Medical records, immigration information, and other confidential documents, such as reference checks and investigative files for harassment claims, should be kept
6 separately from an employee s regular personnel file and should be kept confidential. 3. Employment Policies and Employee Handbooks Most employers should have written policies. Some policies, such as how wages are calculated and paid, are required by statute. See Iowa Code Chapter 91A (2009). Written policies serve to clarify expectations, reduce risk and, in some cases, comply with statutory requirements such as those in the Family and Medical Leave Act (FMLA). In addition, both state and federal law require that certain laws be posted in an area accessible to all employees. Most posters are available from the agency websites. Most concern compliance with the FMLA, Title VII, the Uniformed Services Employment and Reemployment Rights Act ( USERRA ), workers compensation, the organization s anti-harassment policy and state and federal wage and hour laws. State specific posters may include other employee rights. Each employer must make an individual assessment of whether an employee handbook is appropriate for its particular company. a. Disclaimer of contractual obligations Under Iowa law, one potential disadvantage to having an employee handbook is the risk that if it is not carefully drafted, it could be construed to create a contractual relationship between the employer and employee such that the normal at will employment relationship disappears. The Iowa Supreme Court has found that in order for an employee handbook to rise to the level of a unilateral contract of employment, the following three requirements must be met: i) the handbook is sufficiently definite in its terms to create an offer; ii) the handbook has been communicated to and accepted by the employee so as to create and acceptance; and iii) the employee has continued working so as to provide consideration for the contract. When these conditions are met the handbook will be deemed to constitute a contract of employment and any deviation from the handbook may be considered a breach of contract for which the employee may collect damages. Sample Disclaimer: This handbook does not create a contract of employment and all employees of Company X are employees at will. Company X retains the right to modify, interpret or cancel in whole or in part any of the published or unpublished policies
7 of the Company without notice or consideration to any employee. The employment practices set forth are not intended and should not be construed as an express or implied employment contract. These policies do not in any way guarantee employment for any specified period of time. Employees are at will employees and employment may be terminated with or without cause and with or without notice either by company X or the employee. Policies for any employment manual or handbook should include: i) Equal employment opportunity policy A formal statement should included identifying that the employer has adopted an equal employment opportunity policy, and that the employer and its employees will not discriminate against any person on the basis of race, creed, color, sex, religion, national origin, age, disability, sexual orientation or gender identity. ii) Employee Reviews Information concerning the frequency and purpose of employee reviews should be included. A consistent policy allows employees to have a better idea of whether they are meeting the employer s expectations and if not, provide notice and an opportunity to correct existing deficiencies. iii) Progressive Discipline Policy This can be helpful to avoid wrongful termination or discrimination allegations. Care must be taken in drafting a progressive discipline policy to allow the employer some latitude in responding to special situations where an immediate termination might be required such as violence in the workplace. It is important to make clear that while progressive discipline policies are generally followed by the employer, the policy itself is discretionary and may be changed by the employer with or without notice to the employee. iv) Harassment The handbook should make clear that the employer will not tolerate any form of harassment including sexual harassment. It should identify the title of the person to whom an employee should report any incidents of harassment; that the employer will promptly investigate all complaints; and no employee will be subject to any form of retaliation or discipline based on making a complaint. v) Disability Leave It is important that an employer have a consistently applied disability policy. The determination of an appropriate pregnancy leave and what benefits are available for such leave is in part based upon the disability plan of the employer.
8 vi) Family and Medical Leave Under Iowa law an employer must offer female employees employee 8 weeks of leave when the leave is for pregnancy, childbirth or related medical conditions, even if the employee does not qualify for FMLA leave. Under the Family and Medical Leave Act (FMLA) an employer must allow eligible employees (male or female) a total of 12 workweeks during any 12-month period for: the birth of a son or daughter; the placement of a child with the employee for adoption or foster care; care for the employee s spouse, child or parent if the individual has a serious health condition; and a serious health condition that makes the employee unable to perform the functions of the position of such employee. vii) Military Leave viii) The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the amount and nature of leave an employee is entitled to for serving in the military. The policy should state whether the employer will continue to pay an employee during military leave; what types of leave are permitted; and how an employee can exercise reemployment rights under the statute. Wages Under Iowa s Wage Payment collection Act, the term wages includes compensation owed by an employer for vacation, holiday, sick leave and severance payments. Pursuant to the Act, a terminated employee must be paid all wages earned up to the time of termination no later than the next regular pay day. An employer may not withhold or divert any portion of an employee s wages except in very limited circumstances. The employer may have a policy that denies payment of PTO upon termination in certain circumstances. ix) Overtime An overtime policy can explain that employees will only be paid time and a half for hours that they work over 40 in a workweek, reiterating that paid time off for vacation, sick leave, holidays, etc. does not count towards the 40 hours. An important element to include is an admonition that nonexempt employees must obtain permission from their supervisor before working overtime. x) Attendance and sick leave A defined attendance policy will assist in providing employees with clear expectations of their conduct and should include references to failures to report to work and also guidelines for when an employee fails to remain at
9 work. The policy must explicitly state how much leave is given to each classification of employees, and how the leave will be managed. The policy should also make clear whether the leave will be paid or unpaid and outline any notice requirements for employees. The sick policy must not violate the ADA, the FMLA, or state law including Iowa Code 216 (2009) all of which may require an employer to give an employee additional unpaid time off to recover from a disability or a serious health condition. xi) Drug and alcohol policy An employer may absolutely prohibit the use and possession of alcohol, illegal drugs and drugs for which an employee has no personal prescription, in the workplace. Iowa does have extensive laws regarding drug and alcohol testing policies and practices which must be followed. There are also other laws governing drug and alcohol testing for employees in safety sensitive positions, persons applying for or holding commercial driver s licenses, employees in the transportation industry, and in the event of injuries compensable under workers compensation laws. xii) Employee access to personnel files Employee access to personnel files is governed by Iowa Code chapter 91B. An employee shall have access to and shall be permitted to obtain a copy of the employee s personnel file maintained by the employer, including but not limited to performance evaluations, disciplinary records, and other information concerning employer-employee relations. Subject to the following: a time should be agreed upon and an employer representative may be present; an employee shall not have access to employment references written for the employee; and an employer may charge a reasonable fee for copies made by an employer Iowa Code 91B.2 concerns information provided by employers about current or former employees, and states: an employer or an employer s representative who, upon request by or authorization of a current for former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current for former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer s representative acted unreasonably in providing the work-related information. xiii) and voice mail policy Many employees will ultimately receive personal and voice mail messages and while such use can be allowed, ultimate privacy of
10 messages cannot be guaranteed to anyone and messages may be discoverable by opposing parties during litigation. 4. Hiring Process xiv) Internet Policy There should be a police on use of the internet by employees restricting access of materials which may be sexually explicit or otherwise offensive. Illegal or unauthorized duplication of material protected by trademark or copyright laws should be prohibited by company policy. xv) OSHA Injury and Illness Prevention See Occupational Safety and Health Act ( OSHA ) in Federal Law section below. Iowa applies OSHA standards as adopted by Iowa Workforce Development, Division of Labor. This agency investigates safety and health complaints in construction and general industry and performs general scheduled inspections. xvi) Workplace Violence Employers should take steps to prevent violence in the workplace. This may include policies against bringing weapons into the workplace, taking prompt and appropriate action against any acts or threats of violence, and creating an environment that will reduce the likelihood of violence in the workplace. The hiring process involves receiving and reviewing applications, interviewing potential candidates, and selecting the employee. Several federal and Iowa laws limit what employers can ask during the process. a. Applications The application process generally includes publishing the open position and accepting applications. Every help-wanted advertisement should contain an equal employment opportunity statement. Discrimination laws prohibit certain questions on the application, particularly those that elicit information about a person s protected status and are not job related including information about maiden name or marital status; age (unless a large number of minors typically apply); or physical characteristics. Pursuant to the ADA and the Iowa Civil Rights Act, an employer is allowed to ask potential employees questions regarding their ability to perform essential job-related functions.
11 b. Interviewing The interviewing process generally involves interviews and reference checks. Federal and Iowa discrimination laws prohibit employers from asking certain questions during the hiring process. All questions should be related to work activities. If questions are truly nondiscriminatory in intent, they should be asked of all candidates regardless of their sex, race, religion, disability, color, national origin, age or sexual orientation. An employer must make sure that interviewers are aware of the policies of the employer in regard to employment at will, employment contracts and other benefit matters in order to avoid assertions that could abrogate the employment at will concept. c. Background and reference checks Under Iowa law, a negligent hiring action is recognized when the employer owes a special duty to the injured party or parties. Negligent hiring is an action filed by a third party against the employer alleging that the employer is liable for injuries caused by the employee. An action for negligent hiring traditionally requires the following elements are present: the third party was harmed by the employee; the employer employed the employee; the employee was unfit for the job; the employer knew or should have known of the employee s lack of fitness; and the negligent hiring was a substantial factor in bringing about the harm. Courts have imposed a duty upon employers to exercise reasonable care in hiring individuals, who, because of the nature of the employment, may pose a threat of injury to members of the public. Exercising reasonable care includes: the making of a reasonable investigation of a prospective employee s background; and if the employer receives information about the prospective employee that would lead a reasonable person to conduct a further inquiry, the employer has a duty to investigate further. An employer who retains and uses an outside screening company to conduct their reference and background checks must comply with the Fair Credit Reporting Act. The Act requires an additional Application document to be filled out by the employee, which provides the required disclosure and consent. Employer s specific duties under the Fair Credit Reporting Act include:
12 make a clear and conspicuous written disclosure to the employee prior to any background check, in a separate document, which informs the employee of the general nature and scope of the check obtain prior written consent of the employee certify to outside screening company that consent has been obtained, the information will not be used in violation of any federal or state equal opportunity law, and a copy of the report will be provided to the employee before any adverse action is taken based on the report. An employer may not make a general conditional offer that is preconditioned on both the general and health reference checks at the same time. An employer must first offer the position conditioned upon the non-health inquires and, if the nonhealth inquires result in non-disqualifiable responses, then the health inquiries may proceed. Certain industries, including healthcare and schools services require specialized screening. d. Drug and alcohol testing Federal law requires certain employers to administer drug and alcohol testing for railroad and commercial motor vehicle employees. Employers may drug test under the procedures set forth in Iowa Code Prospective employees may be tested and need to be informed of the potential for testing in the job advertisement and at the time of the job interview. An employer must have a written policy, available for review by the prospective employee before any testing. The policy should set forth the adverse employment action that may be taken for positive alcohol or drug tests, as well as the testing procedure. Prospective employees must be notified of a confirmed positive test, as well as the prospective employee s right to request records if done within 15 days. e. Immigration All employers are required to verify that every new hire is either a U.S. citizen or authorized to work in the U.S. All employees must complete Employment Eligibility Verification (I-9) Forms and produce required documentation within three days of their hire date. Failure to follow the I-9 process can result in penalties and an audit by the Immigration Customs Enforcement (ICE). Employers cannot discriminate against employees based on their immigration status. Thus, once an employee has proved that he or she is eligible to work in the U.S, the employee s immigration status should not be used in any other employment decisions.
13 5. Compensation and Benefits The Federal Fair Labor Standards Act (FLSA or Wage Hour Act) is the federal law that governs minimum wage standards, the payment of overtime, child labor and equal pay. Iowa statutes relating to wages and equal pay include Iowa Codes chapter 91A, the Wage Payment and Collection Act, as well as Iowa Code chapter 91D, which provides for a state minimum wage. Iowa Code chapter 91D essentially relies on the FLSA standards. a. Wages Most employers regardless of size are governed by both federal and state wage and hour laws. Federal and state wage and hour laws differ slightly, and employers must follow both. On July 24, 2009, the federal minimum wage was increased to $ 7.25/hr. As of January 1, 2008, the Iowa minimum wage is also $7.25/hr. The two major requirements in both federal and Iowa wage and hour laws concern: (1) payment of the minimum wage and (2) payment for overtime hours. Under the minimum wage laws, employers must pay employees an amount that is at least the statutory minimum wage multiplied by the number of hours that the employee worked in any given work week. Under the laws governing overtime, employers must pay most employees additional compensation for overtime hours. Minimum wage and overtime laws are not limited to hourly employees. Employees who are paid in other ways, such as by salary or commission, may also be entitled to minimum wages and overtime pay. The minimum wage laws apply to all employees and the overtime laws apply to all employees except those who fall into one of the exempt classifications under federal law. b. Maximum hours The maximum number of hours which a non-exempt employee may work, without being paid at an overtime rate, is set forth in 29 U.S.C. section 207(a)(1): Except as otherwise provided in this section, no employer shall employ any of his employees who in any work week is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a work week longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
14 A workweek is a fixed and recurring period of 7-24 hour days and the employer must be able to specify how a day and workweek are calculated. There is a special exception for health care workers. Under the 8/80 rule, overtime for health care workers is calculated on a 14 day pay period rather than a standard 7-day period. Persons who provide services on a public, religious, or humanitarian basis, who perform such services without expectation of any pay and on their own time, typically are not required to be compensated for the voluntary activity. However, there are factual circumstances which may turn a volunteer into an hourly employee. If the employer requires that an employee participate in charitable services in order to maintain his/her job, time spent in such an activity is not considered to be exempt. c. Bonuses Bonuses can improve employee retention and provide extra incentives for reaching certain targets. Employers who provide bonuses (other than gift bonuses like holiday bonuses) should have a written bonus plan to ensure clarity, and to avoid unintended bonuses in implied contracts. Furthermore, how bonuses are determined and whether they are guaranteed (for example, for hitting certain production goals) or discretionary will also have an effect on calculating an employee s overtime. d. Taxes Employers are required to withhold federal income tax and social security tax from taxable wages paid to employees. Under federal law, funds withheld must be deposited in certain depositories accompanied by a Federal Tax Deposit Coupon (IRS Form 8109) or through the Electronics Federal Tax Payment System (EFTPS). An Employer s Quarterly Federal Tax Return (IRS Form 941) must then be filed before the end of the month following each calendar quarter. Willful failure on the part of the employer to collect, account for, and pay withholding taxes will subject the employer to a significant monetary penalty, and in some cases will impose personal liability on those responsible for remitting the withholding taxes. Most employers, including non-profit organizations that are not 501(c)(3) organizations, must also file an Employer s Annual Federal Unemployment (FUTA) Tax Return (IRS Form 940) and pay any balance due on or before January 31 of each year. Details may be found in IRS Circular E, available at
15 Employers who are 501(c)(3) organizations, however, are not required to file a FUTA Tax Return. If payment of tax is required, any balance is due on or before January 31 of each year. Details may be found in IRS Circular E, available at: and in Publication 15A. e. Mandatory Benefits i) Workers Compensation All employers with four or more employees (one or more employees for construction industry employers) must provide workers compensation insurance for their employees. There are some limited exemptions from this requirement, but the workers compensation benefits are the only benefits available for an employee injured in an on the job accident. What this means for employers is that an employee who is injured while performing work for the employer cannot sue the employer for his/her injury, but is compensated through workers compensation. Iowa Code chapter 85 provides coverage to all employees, with the following statutory exceptions: household or domestic employees who earn less than $1,500 in the 12 consecutive months prior to the injury; or are a member of the household, who is defined to be the spouse of the employer or relatives of either the employer or spouse residing on the premises of the employer. persons whose employment is purely casual and not for the purpose of the employer s trade or business, unless such employees earn more than $1,500 in the 12 consecutive months prior to the injury. persons engaged in agriculture, unless the employer s cash payroll is $2,500 or more in the preceding calendar year family members of employers or partners of a partnership; officers of a family farm corporation or limited liability company and their family members police and firefighters president, vice president, secretary, and treasurer of a corporation other than a family farm corporation, not to exceed four officers per corporation, if such an officer knowingly and voluntarily rejects workers; compensation coverage pursuant to Iowa Code ii) Unemployment Insurance Employers must contribute to an unemployment compensation fund. Iowa law restricts payment of unemployment insurance benefits to workers who are without a job thorough no fault of their own. The burden of proof regarding termination rests primarily on the employer. Unless an
16 employee has voluntarily quit, the employer must prove that the employee engaged in misconduct or other prohibited actions in order to win an unemployment compensation hearing. Iowa Workforce Development is the agency charged with administration of claims (www.iowaworkforce.org). iii) Other Iowa Laws Iowa law does not require any particular job benefits other than the payment of minimum wages. This means that the law does not require that employees receive a certain amount of paid time off, whether for vacation, holidays, or sick leave other than pregnancy lave as referenced in Iowa Code Chapter 216. If benefits are provided, there is no requirement on how they are administered as long as they are not administered in a non-discriminatory fashion. Iowa law also does not require that employers provide any disability or medical insurance benefits. However, if such benefits are provided, the plans may be subject to ERISA, COBRA or HIPPA. See summaries of those laws in Federal Law section below. iv) Federally Mandated Benefits See summaries of ERISA, COBRA and HIPPA in the Federal Law discussion below. If applicable, these federal laws mandate certain specified benefits. f. Mandatory Leave of Absence Several federal and Iowa laws either require or govern leaves of absence, depending upon the reason for the leave. Although these leave laws can be very complicated, application of the laws usually depends on the size of the employer, and some of the more complicated laws do not apply to small employers. With certain exceptions, the federal Family Medical Leave Act ( FMLA ) requires employers with 50 or more employees to provide unpaid family or medical leave of up to 12 weeks in a 12-month period for the birth or adoption of a child, for the serious health condition of the employee or spouse, parent or child of the employee, or for a qualifying exigency arising out of the fact that a spouse, child or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in the support of a contingency operation. A serious health condition includes inpatient hospitalization and subsequent treatment therefore and continuing treatment by a health care provider, including pregnancy. To be eligible for FMLA leave, the employee must have worked 12 months or longer, performed at least 1,250 hours of service for the employer in the 12 months prior to the date of leave, and must work at a site within 75 miles of which the employer has 50 or more employees. If the employee s need for leave is foreseeable, the employee must provide his or
17 her employer with 30 days notice before taking leave. When the need for leave is unforeseeable, the employee is required to provide notice as soon as practicable. An individual who believes his or her FMLA rights have been violated is entitled to file a lawsuit. Remedies include lost compensation, liquidated damages, other out of pocket expenses, equitable relief, and attorneys fees g. Voluntary Benefits The benefits listed below are not required by law. However, many employers choose to provide employees with such benefits in order to attract and retain the most qualified workers. An employer is not required to provide employees with retirement benefits, welfare plans, severance pay, or other voluntary benefits. If an employer does establish such plans, however, they are governed by a federal law called the Employee Retirement Income Security Act ( ERISA ). See Federal Law section below. Under ERISA, employee benefit plans must comply with numerous and complex procedural requirements. An employer is not required to provide employees with vacation pay. If an employer elects to provide such benefits, however, they should be uniformly applied in conformity with a written policy. This will provide protection against claims of discrimination and may be necessary to ensure the employer complies with the pay provisions of the Fair Labor Standards Act ( FLSA ) as it relates to exempt employees. Although it is not uncommon to do so, employers are not required to give employees paid holidays. Indeed, except in cases where accommodation of religious holidays might be required, employers are not even required to give employees time off during holidays. Employers are not required to offer paid sick leave to employees. Traditional sick leave is often limited to time off for dealing with the employee s own illness or possibly to care for a sick child or spouse. Upon termination, the employer has no legal obligation to pay out unused sick leave, which means the employer s written policy will control. Many employers choose to combine vacation, sick leave, personal days, and floating holidays into a single paid time off or PTO policy. This makes it easier to administer employee time off and a single policy for accumulating and using PTO will often suffice.
18 Paid leaves of absence, such as paid maternity or paternity leave, are not required by law. 6. Termination of Employment The termination of an employee creates the greatest risk for litigation for an employer. To reduce the risk of liability, employers should follow standardized procedures that are consistently applied to all employees. In Iowa, employment relationships are presumed to be at-will, which means that an employer or an employee may terminate an employment relationship at any time, with or without cause. There are state and federal laws that prohibit employers from discharging employees on the basis of age, race, creed, color, disability, military status, national origin, religion, or sex. Iowa law also prohibits termination on the basis of sexual orientation or gender identity. a. Iowa Law If an employee contract, handbook or policy guarantees that a discharge will occur only for cause or under certain situations, the employer will be bound by the guarantee. The Iowa courts recognize a claim for wrongful discharge when an employee is discharged while engaging in an activity protected by an underlying public policy. The public policy must arise from statutory or constitutional requirements and must be well recognized and clearly defined. The Iowa Supreme Court has recognized several public policies including: permitting employees to make a demand for wages due reporting child abuse seeking unemployment compensation seeking workers compensation benefits Private employers must restore employees who take qualified military leave to the same or a similar position. A private employer cannot discharge, discipline, or otherwise sanction an employee who is absent from work for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order requiring the employee s attendance. An employer is prohibited from requiring an employee to participate or refrain from participating in a labor organization as a condition or continuance of employment.
19 An employer is precluded from terminating an employee because the employee s earnings are subject to garnishment, even if more than one summons of garnishment has been served on the employer with respect to a debt. An employer may not discharge an employee for requesting information regarding hazardous chemicals, filing a complaint relating to the employer s use of hazardous chemicals under either OSHA or the Public Employee Hazardous Chemical Protection and Right to Know Act of 1988, or otherwise reporting or participating in an action under either of these laws. b. Federal Law Title VII prohibits an employer from discharging an employee on the basis of race, color, religion, nation origin, or sex (including pregnancy, childbirth, or related medical conditions). The Pregnancy Discrimination Act applies to private and public employers with 15 or more employees, labor organizations, and employment agencies. Employers must treat pregnant women the same as men or women who are not pregnant whose ability or inability to work is due to a non-pregnancy related medical condition or disability. The Age Discrimination in Employment Act (ADEA) applies to private and public employers with 20 or more employees. ADEA precludes an employer from discriminating against an individual with respect to discharge and other terms, conditions, and privileges of employment on the basis of the individual s age, provided that the individual is 40 or older. The American with Disabilities Act (ADA) applies to public and private employers who have 15 or more employees. The ADA prohibits discrimination and harassment in any aspect of employment, including discharge, applications, testing, hiring, assignments, evaluations, disciplinary actions, compensation, promotions, leave, and benefits. Family and Medical Leave Act (FMLA) applies to any employers who have 50 or more employees. An employer is precluded from discharging an employee for exercising his or her rights to leave under the FMLA. Under FMLA an employee is entitled to up to 12 weeks of unpaid leave for the birth or adoption of a child, the employee s own serious health condition, or to care for a spouse, parent, or child with a serious health condition.
20 The National Labor Relations Act (NLRA) prohibits discrimination, including discriminatory discharge, based on the employee s exercise of protected concerted activity (including but not limited to union activity). The Employee Retirement Income Security Act (ERISA) governs all employee benefit plans unless specifically exempted. ERISA prohibits discrimination against employees (benefit plan participants), including discriminatory termination, who exercise rights under ERISA. c. Pay All wages earned and unpaid at the time of discharge are due and payable upon the termination of employment and must be paid at the next regular pay date. d. Severance Agreements / Releases Generally, employers are not required to provide severance pay, unless they have agreed to do so. If the employer wants to offer severance to an employee, the employer may ask the employee to sign a release in exchange for the severance, in which the employee waives all legal claims the employee may have against the employer. If an employer seeks a release, the employee must be provided severance or other consideration in addition to any payments the employee was already entitled to receive. Federal law contains specific statutory requirements for waivers of age discrimination claims and prohibits the waiver of certain wage claims. e. Unemployment Insurance / Compensation The purpose of unemployment compensation is to provide benefits to those who are unemployed through no fault of their own. Therefore, to be eligible for payments, an applicant generally must either (1) have quit for good cause attributable to his or her employer or (2) have been terminated for reasons other than serious misconduct connected with his or her work. Under certain conditions, an unemployed worker may not be disqualified for voluntarily quitting. The Iowa Administrative Code lists over 30 voluntary quits which are not found to be with good cause attributable to employer and over 20 which would not disqualify the claimant. The law restricts payment of unemployment insurance benefits to workers who are without a job through no fault of their own. It imposes specific requirements on eligible workers who receive benefits: the worker must be able to work
21 the worker must be available for work the worker must be earnestly and actively seeking work. For additional information on unemployment laws in Iowa, fighting claims, and other related information, visit the Iowa Workforce Development s website at f. Health Care Continuation (COBRA) Requirements The Consolidated Omnibus Budget Reconciliation Act of 1985 ( COBRA ) requires employers who provide employee health and medical benefits to provide notification to employees of their COBRA rights at the time of a qualifying event such as a resignation or an involuntary termination of employment. COBRA applies to employers with more than 20 employees. See Federal Law section below. Iowa law requires that employers or group policyholders, regardless of their size, provide the continuation coverage outlined in Iowa Code Chapter 509B to eligible employees. 7. Immigration With globalization and the increasing benefits of a diverse workforce, social sector employers located in the U.S. often seek to employ foreign personnel. This is particularly true with social sector organizations that are already working and addressing problems not just in the U.S. but around the world. A variety of permanent and temporary visas are available depending on various factors such as the job proposed for the alien, the alien s qualifications, and the relationship between the U.S. employer and the foreign employer. Permanent residents are authorized to work where and for whom they wish. Temporary visa holders have authorization to remain in the U.S. for a temporary time and often the employment authorization is limited to specific employers, jobs, and even specific work sites. When planning to bring foreign personnel to the U.S., U.S. employers should allow several months for processing by the United States Citizenship and Immigration Services ( USCIS ), as well as the Department of State and Department of Labor. Furthermore, employers should be aware that certain corporate changes, including stock or asset sales, job position restructuring, change of job sites, and changes in job duties, may dramatically affect (if not invalidate) the employment authorization of foreign employees.
22 a. Permanent Residency (the green card ) Permanent residency is commonly based on either family relationships, such as marriage to a U.S. citizen, or offer of employment. Permanent residence gained through employment often involves a time-consuming process that can take several years. Therefore, employers considering the permanent residence avenue for an alien employee should ascertain the requirements for that immigration filing prior to bringing the employee to the U.S. b. Temporary Visas. The following are the most commonly used temporary visas: i) B-1 Business Visitors and B-2 Visitors for Pleasure These visas are commonly utilized for brief visits to the U.S. of six months or less. Neither visa authorizes employment in the U.S. B-1 business visitors are often sent by their overseas employers to negotiate contracts, to attend business conferences or board meetings, or to fill contractual obligations such as repairing equipment for brief periods in the U.S. B-1 or B-2 visitors cannot be on the U.S. payroll or receive U.S.-source remuneration. ii) F-1 Academic Student Visas Including Practical Training Often foreign students come to the U.S. in F-1 status for academic training or M-1 status for vocational training. Students in F-1 status can often engage, within certain constraints, in on-campus employment and/or off-campus curricular or optional practical training for limited periods of time. Vocational students cannot obtain curricular work authorization but may receive some post-completion practical training in limited instances. iii) J-1 Exchange Visitor Visas These visas are for academic students, scholars, researchers, and teachers traveling to the U.S. to participate in an approved exchange program. Training, not employment, is authorized. Potential employers should note that some J-1 exchange visitors and their dependents are subject to a two-year foreign residence requirement abroad before being allowed to change status and remain or return to the U.S. iv) TN Professionals Under the North American Free Trade Agreement, certain Canadians and Mexicans who qualify and fill specific defined professional positions can qualify for TN status. Such professions include some medical/allied health professionals, engineers, computer systems analysts, and management consultants. TN holders are granted one-year stays for specific employers and other employment is not allowed
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