What Can A Former Employer Say To Potential Employers?

If you can’t get a job because a former employer is giving bad information about you to potential employers, can you sue your former employer?  Maybe, and it is difficult to do so.  There are a number of things you need to do for such a claim to be successful.

First, you need to find out why you did not get the job.  There are many reasons why you may have been rejected, only some of which might have anything to do with a former employer.  You are not allowed to guess that your former employer said something and then go to court.  You need actual proof as to whether your employer said anything and what it said.  How do you get that proof?  The potential employer needs to tell you that your former employer said something, or you need to ask.

Second, even if your former employer did tell something to a potential employer, your former employer has strong immunity from such claims under Iowa Code 91B.2  You need to have the evidence necessary to get around that immunity too.  Here is the text of Iowa Code 91B.2:

1. An employer or an employer’s representative who, upon request by or authorization of a current or 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 or 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.

2. For purposes of this section, an employer acts unreasonably if any of the following are present:

a. The work-related information violates a civil right of the current or former employee.

b. The work-related information knowingly is provided to a person who has no legitimate and common interest in receiving the work-related information.

c. The work-related information is not relevant to the inquiry being made, is provided with malice, or is provided with no good faith belief that it is true.

Erbe Law Firm can assist with any employment law or labor law questions that you might have.  Please feel free to contact Erbe Law Firm for a free initial consultation with an employment law or labor law attorney.

Avandia Heart Attack Danger

The U.S. Food and Drug Administration (FDA) is informing the public of new restrictions to the prescribing and use of rosiglitazone-containing medicines. These medicines to treat type II diabetes are sold under the names Avandia, Avandamet, and Avandaryl. Healthcare providers and patients must enroll in a special program in order to prescribe and receive these drugs.

The new restrictions are part of a Risk Evaluation and Mitigation Strategy (REMS)—a program FDA may require to manage serious risks of marketed drugs. The restrictions are based on data that suggested an elevated risk of heart attacks in patients treated with rosiglitazone. The decision to restrict access to rosiglitazone medicines was made on September 23, 2010.

FDA has modified the REMS for Avandamet and Avandaryl because previously, the REMS consisted of only a Medication Guide. The REMS, which now includes a restricted access and distribution program, applies to all three rosiglitazone products.

The REMS, called the Avandia-Rosiglitazone Medicines Access Program (PDF – 3MB),² limits the use of rosiglitazone medicines to:

• Patients already being successfully treated with these medicines.
• Patients whose blood sugar cannot be controlled with other anti-diabetic medicines and who, after consulting with their healthcare provider, do not wish to use pioglitazone-containing medicines (Actos, Actoplus Met, Actoplus Met XR, or Duetact).

Healthcare providers and patients must be enrolled in the Avandia-Rosiglitazone Medicines Access Program in order to prescribe and receive rosiglitazone medicines. After November 18, 2011, rosiglitazone medicines will no longer be available through retail pharmacies. Patients who are enrolled in the Avandia-Rosiglitazone Medicines Access Program will receive their medicine by mail order through specially certified pharmacies participating in the program.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of pharmaceutical drug use.  I’ll be happy to see if I can give you a hand.

Drugs And Birth Defects

Topamax, Depakote, Paxil, and Zoloft are among the many prescription medicines that have been found to be create a much higher risk of birth defects than the manufacturer had been claiming in reports to the FDA.

The manufacturers of each of these drugs, and several others, are liable for any negligent or intentional hiding of information that could have helped doctors make better decisions about how and when to prescribe these drugs. If a doctor who prescribed one of these drugs relied on misleading information that the manufacturer published or gave to the FDA, that corporation may be liable for birth defects in children born to mothers who were taking one of those drugs.

Birth defects are among the most harmful injuries these drugs have caused. Mothers and fathers across the United States are left to help children who have been harmed by profit-making, and often illegal, acts of the drug makers.

Many of the largest lawsuits against pharmaceutical manufacturers come about because the company that made the drug did not fully disclose the drug’s risks.

If the prescription drug maker knows of heightened risk for particular problems, such as birth defects, the company has a duty to share complete and accurate information with the FDA, doctors and patients. Often, companies have intentionally or negligently hidden some of that information.

Sometimes, the company may admit to a certian level of birth defect risk, other times they reveal nothing at all about birth defects. In both situations, the drug maker has violated federal law and has committed what lawyers call “tortious acts” against the patients who end up taking those drugs.

Often, the negligent or criminal company executives argue that the doctors had complete information and only the doctors should be liable for any injuries that result. This defense tactic is improper and futile when the company has not fully disclosed what they knew about the full extent of the safety risks as soon as they knew it. In many cases, the doctors were not informed of the results of clinical research the company conducted. In that situation, it is the drug manufacturer that is properly held responsible.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of pharmaceutical drug use.  I’ll be happy to see if I can give you a hand.

School Liability For Bullying

School bullying continues to be a hot topic.  Bullying of course can result in criminal charges against those responsible for the bullying, but what about the school’s liability?  Sometimes schools can be held civilly responsible for injuries caused by bullying.

Iowa’s courts have recognized that schools have a “special relationship” with students.   Schools thus have a general obligation to safeguard the physical and mental well-being of students, including from the acts of other students.  Such claims would normally be based on a negligence theory, i.e., that the school knew of the bullying and did nothing to stop it.  It is very difficult to hold a school liable for bullying if the school did not know of and have a chance to prevent or stop the bullying.

In 2007 Iowa enacted an anti-bullying statute, Iowa Code 280.28.  That law defines bullying as “any electronic, written, verbal, or physical act or conduct toward a student which is based on any actual or perceived trait or characteristic of the student and which creates an objectively hostile school environment that meets one or more of the following conditions: (1)  Places the student in reasonable fear of harm to the student’s person or property; (2)  Has a substantially detrimental effect on the student’s physical or mental health; (3)  Has the effect of substantially interfering with a student’s academic performance; or (4)  Has the effect of substantially interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school.”  Iowa Code 280.28 also requires schools to enact anti-bullying policies.  The statute does not provide for liability if its provisions are not followed by a school.

Depending on the circumstances, bullying may also result in violations of certain federal and state statutes that specifically apply to schools.  Examples would be laws that govern the schooling of individuals with mental or physical handicaps and laws that prohibit sex discrimination in education.

Please feel free to contact me if you believe that your child has suffered personal injuries or wrongful death because of bullying at school.

Tire Safety Part Two

I wrote a while back about the dangers that can be caused by defective tires.  Terrible accidents can also be caused by poor tire maintenance.  Here is a list of things to watch out for in maintaining your tires:

1. No on-the-rim repairs. The tire must be dismounted so that the tire can be properly inspected and sealed against moisture. Short cuts on this can put the survival of your DNA at severe risk.

2. No repairs near the shoulder. This is the weakest part of the tire.  Only holes in the middle of the tire can be repaired.  If you pick up a nail near the shoulder, just spring for the price of a new tire. It’s cheaper than a funeral.

3. New tires go on the rear.  Installing the new tread on the front can lead to loss of control.

4. Check tire pressures and adjust at least once a month. According to the National Highway Traffic Safety Administration (NHTSA) on tire-related crashes, the leading cause of tire failure is underinflation.

5. Inspect tires regularly for abnormal wear or damage. This is easily done at the same time you check pressures. If repair is needed, see #1 above.

6. Rotate tires every 6,000 miles or according to owner’s manual. I know, this is as boring as flossing teeth, but uneven wear pattens can have really bad outcomes such as catastrophic tire failure, rollover, death, quadriplegia, etc.

7. Maintain tires in proper balance.  See #6.

8.  Maintain steering and suspension in proper alignment. See #6 again.

9. Never overload a tire. Overloading is the second leading cause of tire failure, next to underinflation. So don’t load down your old Pinto with rocks  to build that cool stone patio and outdoor fireplace for the coming spring. Read the load capacity stuff in the owner’s manual.

10. Avoid overheating tires.  Excessive speeds, heavy loads, underinflation, rough pavement or concrete, and aggressive driving all contribute to high tire temperatures. All these, especially in hot weather, can lead to sudden tire failure.See #6 again re: bad outcomes.

11. Replace tires when . . .

• Any portion of the tread is worn to the “wear indicator bars”—lateral bars molded into the tire grooves at about 20 percent of their new tread depth—or to a depth, as measured in a groove, of 1/16th inch or less.
• Tread wear is severely uneven (in which case have the wheel alignment checked) or the center is worn much more than the edges. (See #6 again about bad things happening to good people.)
• The tire sidewalls are severely cracked or there are bulges anywhere on the tire.
• There is any indication of tread separation from the tire carcass.
• The tire has been punctured and cannot be satisfactorily repaired. (See #1 & #2 again.)

12.  Install tires in matched pairs or complete sets.  I just taught this one to my frugal daughter who had one tire go bad. I hope she remembers when she, rather than Dad, is paying for the tires.

13.  Select the right tires for your vehicle and driving environment. There is quite a variety of specialized tires available. In our generally mild southern climate, “all season” tires are generally good enough for most of us. My daughter’s boyfriend is an advocate of snow tires in upstate New York, where they are in college. I tell her to ride with him in the winter since we Southerners don’t know how to drive on that stuff anyway.

Please feel free to contact me if you have a personal injury or wrongful or products liability matter because of a tire issue.  I’ll be happy to see if I can give you a hand.

Do You Need Flood Insurance?

With hurricanes and other forms of natural disasters that have been on the news in recent years, you’ve probably heard how many people lost their homes, or had damage to their homes, and didn’t have flood insurance coverage as part of their homeowner’s policy. Some of them lived in known flooding areas, others did not. Flood insurance does not come as part of a standard homeowner’s insurance policy.

It needs to be purchased in addition to your other coverage. You may think it is a coverage that you don’t need. Read through the following list and then see if you still feel the same way.

1. You live in a known flood plain. If where you live is commonly known to be a flood plain, then, yes, you NEED flood insurance. Why would you want to risk losing your home?
2. Your house has been flooded before. Some people make the mistake of thinking that once they’d experience a rare flood or a hurricane in their area, that they will be safe from it happening again in their lifetime. This is presumptuous, and puts you at risk.
3. All your neighbors have it. Maybe this would be considered peer pressure, but if everyone else in your neighborhood thinks that flood insurance is worth paying for, then you might want to join the crowd.
4. Check your risk factor with FEMA Go to www.floodsmart.gov and click on Your Flood Risk and enter your address to find out the amount of risk FEMA has assigned to your area. If there is any risk at all, you will want to give flood insurance some serious consideration.
5. Floods from above. Home flooding doesn’t always come from rivers. Sometimes it comes from heavy down pours of rain that saturate the ground and seep into your basement. That is still defined as flooding, as far as your insurance company is concerned.
6. Floods from below. Even if your home is situated on higher ground where area flood waters aren’t reaching, you may still experience damage to your home from rising ground water levels that leak into your basement from below.
7. Your mortgage lender requires it. If your mortgage lender requires you to cover flood insurance, then they obviously consider flooding to be a significant risk for your location. They are protecting your investment, as well as their own.
8. Frosty floods. Snow melting while the ground is still frozen is another way that your home can be damaged by flood water. When the ground is frozen, water from the surface is unable to penetrate and filter down through the soil. Water will naturally seek a way to escape and may use your basement as a route downward.
9. Hurricanes. Hurricanes bring wind and rain, and lots of both. The average home insurance policy will cover the wind damage, but not the damage due to rain, flooding or any moisture issues associated with the storm.
10. Water damage in general. As you can see, almost any type of natural water damage to your home is not covered by a normal homeowner’s insurance policy. You will need to have flood insurance if you want coverage for any of these types of damage. It generally is easier for your insurance agent to list the water damage types that would be covered, since they are so few, than to list all of those that aren’t.

I can give you a hand with any insurance law issues that may arise because of a flood.  Just give me a call and I’ll be happy to speak with you.

Are Gas Pipelines Safe?

Gas pipeline explosions are rare, but when they happen significant injuries and death and property damage can occur.  Pipeline explosions can be caused by simple aging, particularly corrosion.

Pipelines are running underground across the country – approximately 2 ½ million miles of pipeline. Many of the pipelines are old. So how do we know that they are safe?

According to experts, most pipelines do not need to be inspected – only those which are near large populations or natural resources. Only about 7 percent of major lines run near neighborhoods. In addition, utility companies are required to clearly mark pipelines and to notify residents about them.

If you are worried about a gas leak in your neighborhood, there are some steps you can take. Of course, be alert for a smell. Natural gas does not have an odor, but frequently utility companies will add an odor in order to help detect leaks. It may be a rotten egg smell. Listen for a hissing sound. Also, look for a cloud or fog, grass or other vegetation that’s dying for no apparent reason, or bubbles in standing water, which can all be signs of a leak.

If for some reason you do suspect a leak, leave your house immediately. Do not turn any lights or appliances on or off or use a phone, or even start your car – all of those actions can create a spark.

I can help with your personal injury or wrongful death or property damage claim.  Please contact me if you have an issue with a gas pipeline you would like to discuss.

Uninsured And Underinsured Motorist Insurance Coverage

Not everyone complies with Iowa’s motor vehicle financial responsibility law, which requires liability insurance for all motor vehicles.  Even motor vehicle owners that do comply with the law may only carry the minimum $20,000 of coverage mandated by Iowa law.  If you’re in an accident with such a driver, that driver may have no or insufficient coverage for your bodily injuries and property damage.  You may then have to resort to your own uninsured or underinsured motorist coverage.

Every motor vehicle policy issued in Iowa includes at least minimal uninsured and underinsured motorist coverage ($20,000 per person/$40,000 per accident bodily injury; $15,000 property damage).  That is mandated by Iowa law.  You can also buy greater uninsured and underinsured motorist coverage by paying a higher premium to your insurance company.

An uninsured or underinsured motorist claim is made against your own insurance company.  Therefore, like any other insurance claim, your insurer may raise various policy provisions or exclusions to avoid paying your claim or minimize the amount paid.  So you not only have to prove that you would be legally entitled to recover against the uninsured or underinsured driver, i.e., that the other driver is liable, but you also have to navigate any policy provisions or exclusions that your insurer throws at you.  Consequently, some uninsured or underinsured motorist claims never even reach the question of the other driver’s liability.  Instead, they get stuck at the preliminary issue of whether your insurer is even exposed to a potential uninsured or underinsured motorist claim under the terms of your insurance policy.

If your insurer denies your uninsured or underinsured motorist claim or you and your insurer cannot agree on a fair amount for payment of the claim, you will have to resort to a lawsuit against your insurance company for breach of the insurance contract.  Although that suit is technically a contract/insurance lawsuit, and may include preliminary contract and insurance legal disputes, at the end it becomes a basic personal injury case and the jury is asked to determine the amount of damages you suffered in the accident with the uninsured or underinsured driver.

Uninsured and underinsured motorist insurance claims are complicated matters that blend insurance law, contract law, and personal injury law in a unique way.  To fully determine your legal rights you have to analyze your insurance policy, state statutory law, and state court law and apply all of that to the circumstances of your accident.  That is not something that you should not undertake without an attorney.  Please contact me if you have a question about insurance law or personal injury or wrongful death law.

Statutes Of Limitations And Statutes Of Repose

Some legal claims are governed by two time limits: a “statute of limitations” and a “statute of repose.”  Technically, all legal actions have a statute of limitations.  Only a very few, such as construction defect cases or products liability claims, also have a statute of repose.

Most people are familiar with statutes of limitations.  Those are time limits under which you must assert your legal rights or lose them.  In Iowa, depending on your claim the statute of limitations could be two, five, or ten years.  You must file suit within that time period or lose the right to do so.  If you exceed the time limit for suing, there is very little, and usually nothing, that you can do to save your legal claim.

The time period under a statute of limitations begins to “run,” like a backwards countdown, at varying points depending on the type of legal claim and the specific facts of the case.  It is important to accurately determine when that time period begins because, if it started earlier than you realized, your mistake will not allow you to get around the limitations period.  One example that I’ve seen variously involves people believing that the statute of limitations does not begin to run until you hire an attorney, or contact an insurance company, or settlement negotiations fail, or until you decide that you needed to pursue legal action.  The clock on your claim does not stop and is not delayed by any of those.

Folks also often think that statutes of limitations don’t apply to egregious cases of wrongdoing or cases that have great evidence because “the guy just shouldn’t be able to get away with it.”  That may be true, but you still have to sue within the limitations period, regardless of how great your case is or how badly someone else wronged you.  Otherwise, the guy “will just get away with it.”

Statutes of repose are a little more difficult.  They can be frustrating for people when they impact a legal claim.  Statutes of repose begin at a fixed date (for example, when your house was finished or you bought a product) and then continue for a set period of years.  Once that time period has expired, you lose your legal rights even if you have not been injured yet.  Some statutes of repose allow for a delayed time period in certain circumstances.  But it is possible that you could try to begin a claim within the applicable statute of limitations but have it be outside the statute of repose time period.  In that situation you cannot sue.

As you can see, statutes of limitations and statutes of repose are very important because they can prevent your lawsuit.  It takes careful legal analysis and knowledge of the statutes and how they’ve been applied by Iowa’s courts to navigate this area of law, especially in personal injury or wrongful death, motorcycle accident, car accident, construction defect and products liability cases.   Please feel free to contact me for more information or to discuss a legal matter that includes statute of limitations or statute of repose issues.

Payment Of Bonuses Upon Employment Termination

I sometimes get calls from folks whose firing or resignation cost them a bonus.  They wonder whether they can claim the bonus that they’d have been entitled to had they not left employment.  That’s not always an easy answer because it depends on the individual’s situation.

Bonuses are considered wages under Iowa law.  In most instances your employment termination, voluntary or involuntary, will cost you any wages, including bonuses, that you’d not earned on the effective date of your termination.  So if your employer requires you to be employed on a certain date or work so many hours to be eligible for the bonus, and you miss that mark because your employment ends for any reason, you likely will not be entitled to the bonus.  But if you did reach bonus eligibility before your termination then your employer has to pay you that bonus as earned wages even though your employment has ended.

Iowa’s courts have not generally recognized a claim for a “pro rata” bonus.  If you miss the bonus eligibility by a day because your employment ends, courts usually do not order your employer to pay 95% of the bonus.  Bonus claims are pretty much an all-or-nothing proposition — either you met the eligibility requirements set by your employer and can claim the bonus, or you missed the requirements and cannot claim a bonus, regardless of how close you were to being eligible for one at the time you were terminated.

About the only exception to that rule applies to contractual (as opposed to at-will) employees.  An employee who is under contract with an employer for a set period of employment may be able to make a pro rata bonus claim if the employer unilaterally terminates the employment contract before the contract’s set termination date.

Erbe Law Firm can assist with any employment law or labor law questions that you might have.  Please feel free to contact Erbe Law Firm for a free initial consultation with an employment law or labor law attorney.