Payment Of Unused Vacation Time Upon Termination

I mentioned in an earlier post that unused vacation may be among the “wages” that an employer must pay you after you’re fired.  I stress the word “may” because you’re not always entitled to a vacation payout.  Iowa Code 91A.4 requires employers to pay for unused vacation “[i]f vacations are due an employee under an agreement with the employer or a policy of the employer establishing pro rata vacation accrued. . . .”  That law basically requires you to consult your employee handbook and other applicable employer policies.

Many employers only reimburse terminated employees for unused vacation time under certain circumstances.  If your employer has such a policy, and you don’t meet whatever requirements your employer has imposed for a vacation payout, you won’t be entitled to that vacation.  But if you do meet the requirements then your employer must pay out that vacation, along with the rest of your wages, as part of your final paycheck that must be issued no later than the next regular payday after the date that your employment was terminated.

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.

Cantaloupes And Salmonella

Along with fireworks go picnics.  Food safety is important during outdoor events.  Sometimes though, despite your best efforts, problems can still happen, such as the Food and Drug Administration reported last week:

FOR IMMEDIATE RELEASE – June 24, 2011 – Scottsdale, AZ – Eagle Produce, LLC of Scottsdale, Arizona has announced a limited recall of certain cantaloupes shipped from Arizona to upstate New York in late May, due to their potential to be contaminated with salmonella. Although no illnesses have been reported, Eagle Produce has voluntarily decided to recall the potentially affected shipments, which were sold at Sam’s Club between June 2 and June 17, 2011. Sam’s Club has withdrawn all cantaloupes from the Clubs and sent a notification to Members that bought these melons from Clubs served by the Johnstown, NY and Pottsville, PA distribution centers.

Salmonella an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The recall is limited to approximately 1760 cartons of cantaloupes, each containing 9 melons, for sale in bulk, in brown cardboard cartons each with the Kandy logo in white with the word ‘Cantaloupes’ in white lettering on a red background. The cartons have the lot code 147 count 9 printed on the side of the carton. Each melon bears a Kandy sticker with the words ‘Cantaloupe USA’.

The recall is being implemented as a result of a routine and random test directed by the USDA and carried out by the New York Department of Agriculture. The company has ceased the production and distribution of the product in question.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter involving fireworks that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Fireworks Safety

It’s summer so fireworks are a frequent attraction, especially during the upcoming July 4th holiday.  The United States Consumer Produce Safety Commission has issued a safety bulletin regarding fireworks:

Celebrating July 4th Safely: Fireworks Big and Small Can Pose Risks, CPSC Urges Caution with Every Use

WASHINGTON, D.C. – Sparklers, bottle rockets and small firecrackers may appear harmless due to their size, however, new data released today by the U.S. Consumer Product Safety Commission (CPSC) shows that last year, during the 30 days surrounding July 4, these fireworks sent about 1,900 injured consumers to emergency rooms. CPSC’s statistics show that in 2010 about 8,600 consumers ended up in hospital emergency rooms due to injuries involving legal and illegal fireworks.

CPSC’s annual death and injury report on fireworks also indicates that approximately 40 percent of estimated injuries occurred to children younger than 15 years of age. In addition, CPSC received reports of three fatalities related to fireworks.

“From purchase to ignition, know how you and your family can stay safe and which fireworks are allowed in your state if fireworks are part of your July 4th celebration,” said CPSC Chairman Inez Tenenbaum. “Never assume that a fireworks device is safe based on its size and never allow young children to play with or light fireworks. By knowing the dangers of all types of fireworks, consumers can prevent tragedies.”

Today on the National Mall, CPSC hosted its annual fireworks safety press conference highlighting – through live demonstrations – the dangers associated with legal and illegal fireworks.

Chairman Tenenbaum announced that during the 30 days surrounding last year’s Independence Day holiday, there were about 6,300 reports of injuries involving fireworks. Burns and lacerations to the hands, face and head were the most frequently reported injuries. About 40 percent of the injuries that occurred during this time period were related to firecrackers, bottle rockets, and sparklers.

The federal government is committed to stopping the manufacture and sale of illegal fireworks. CPSC established permanent staffing at the Import Safety Commercial Targeting and Analysis Center (CTAC) in Washington, D.C., and the agency is working in cooperation with U.S. Customs and Border Protection (CBP) to implement new enforcement measures.

In 2010, CPSC staff began implementing new procedures for identifying and selecting fireworks at the ports for examination and sampling. With assistance from CBP, staff from the CPSC sampled and tested many shipments of fireworks to see if they were in compliance with the Federal Hazardous Substance Act (FHSA). Of the shipments targeted by CPSC staff about 43 percent contained noncompliant fireworks. CPSC is working closely with our federal partners to enforce fireworks regulations, prosecute manufacturers and distributors of illegal fireworks, and educate the public about the risks associated with such fireworks.

Early this month, CPSC staff sent a letter to the industry regarding “adult snapper” devices, recently offered for sale. The letter provides the staff’s clarification of labeling and pyrotechnic composition limits for these devices. The letter advised that the staff considers adult snappers, although fuseless, to be the equivalent of more powerful firecrackers.

The CPSC and the General Administration for Quality Supervision and Inspection and Quarantine (AQSIQ) of the Government of the People’s Republic of China have targeted fireworks among four product areas for exchange of information on standards, greater inspection of high-risk products, and tighter quality controls on components from parts suppliers.

Consumers who decide to purchase legal fireworks are urged to take these safety steps:

• Never allow young children to play with or ignite fireworks.
• Avoid buying fireworks that are packaged in brown paper because this is often a sign that the fireworks were made for professional displays and that they could pose a danger to consumers.
• Always have an adult supervise fireworks activities. Parents don’t realize that young children suffer injuries from sparklers. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals.
• Never place any part of your body directly over a fireworks device when lighting the fuse. Back up to a safe distance immediately after lighting fireworks.
• Never try to re-light or pick up fireworks that have not ignited fully.
• Never point or throw fireworks at another person.
• Keep a bucket of water or a garden hose handy in case of fire or other mishap.
• Light fireworks one at a time, then move back quickly.
• Never carry fireworks in a pocket or shoot them off in metal or glass containers.
• After fireworks complete their burning, douse the spent device with plenty of water from a bucket or hose before discarding it to prevent a trash fire.
• Make sure fireworks are legal in your area before buying or using them.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter involving fireworks that you would like to discuss.  I’ll be happy to see if I can give you a hand.

The Unemployment Benefits Process

Unemployment claims are administered by Iowa Workforce Development.   If you lose your job, are temporarily unable to work, or are temporarily laid off, you may apply for unemployment insurance through that agency.  Iowa Workforce Development will then decide whether you’re eligible for benefits and, if so, how much.

A common misconception is that your employer controls whether you get unemployment benefits.  That’s not true.  Your employer has a right to contest your benefits claim, but Iowa Workforce Development has sole authority to decide whether you actually receive unemployment.  You have to go through the eligibility determination process with Iowa Workforce Development even if your employer does not object to your benefits claim.

After you file your claim, the agency will conduct a “fact finding interview” with a “hearing officer.”  That’s done by telephone and you’re given written notice of the date and time of the interview.  The hearing officer will ask you questions about your job situation.  If your employer has contested your claim, the hearing officer will interview your employer too.  The hearing officer then makes an initial decision on whether you are eligible for unemployment benefits.

You or your employer has the right to appeal the hearing officer’s decision.  That appeal is heard by Iowa Workforce Development’s Appeals Section.  Appeal hearings are conducted by an administrative law judge, usually be telephone, although any party to the appeal has a right to request an in-person appeal hearing.  During the appeal hearing the administrative law judge will hear evidence and testimony, including witnesses,  from any party that participates.  The judge can ask questions of you, your employer, and any witnesses that are called.  You and your employer have a right to representation, including an attorney, during the appeal hearing and that person can ask questions and present evidence too.  The hearing is audio-recorded so that a transcript can later be made if necessary.  Based on the evidence presented, the administrative law judge will issue a written decision affirming or reversing the hearing officer’s benefits decision.

The appeal hearing is of crucial importance to your unemployment benefits claim.  It’s like a mini-trial.   If there are further appeals after the administrative law judge rules, the parties are almost always limited to arguing whatever evidence and testimony was presented to the administrative law judge.  You rarely, and only with extremely good reason, get to offer more evidence or testimony after the appeal judge closes the record.  So if you lose, and you wish you had said something more or different or offered more documents or called more witnesses, you’ll almost certainly not get a chance to do that without a really strong excuse for why you didn’t do so during the appeal hearing.  Most likely, any further appeals will be made on the basis of whatever you presented to the administrative law judge during the hearing.

The administrative law judge’s decision  can be appealed to the Employment Appeal Board.  The Employment Appeal Board’s ruling can be appealed to Iowa District Court.  The Iowa District Court’s decision can be appealed to the Iowa Supreme Court.  Frequently, because most further appeals are limited to the evidence that was offered during the appeal hearing with the administrative law judge, unemployment claims are won or lost during that first appeal hearing.  It’s extremely difficult to get more evidence in after that hearing or get the administrative law judge’s decision overturned through further appeals.

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.

Debitech Defibrillator Recall

The Food and Drug Administration recently has released information about Defibtech’s voluntary recall of its defibrillators:

FOR IMMEDIATE RELEASE – April 29, 2011 – Defibtech, LLC is initiating a worldwide voluntary recall of certain DDU-100 series semi-automatic external defibrillators (AEDs) sold under the Lifeline AED and ReviveR AED brand names, including 65,885 AEDs distributed in the United States. This recall affects only DDU-100 Series AEDs shipped with 2.004 software or earlier. This corrective action addresses two possible conditions, which in rare cases may cause an affected AED to cancel shock during the charging process and not provide therapy which may result in failure to resuscitate the patient. Both conditions are not detectable by the periodic self test.

Condition 1: In rare instances, the AED may cancel charge in preparation for a shock. Based on field data, the odds of an affected AED having this happen are less than a 1 in 400,000 chance per month for any given AED.

A subset of AEDs (less than 11%) that are affected by Condition 1 are also affected by Condition 2: In rare instances, the AED may cancel charge in preparation for a shock in very high humidity conditions. The only reported cases were in environments of greater than 95% relative humidity or condensing conditions. Based on field data, the odds of an affected AED having this happen are less than a 1 in 250,000 chance per month for any given affected AED.

Defibtech will provide customers with a free software upgrade to address these issues. The correction to the AED will be able to be performed at the location where the AED is deployed.

Because both of these conditions occur very rarely, it is recommended that customers keep their AEDs in service until they have performed the software upgrade. Full instructions and recommendations are being mailed to affected customers. This customer notification, as well as instructions on determining whether an AED is affected, can also be found on the www.defibtech.com/fa11 web page. For additional information regarding this recall, please refer to the above referenced web page, contact your distributor, or contact Defibtech at techsupport@defibtech.com, 1-877-453-4507 or 1-203-453-4507.

The AEDs affected by this recall have been distributed globally to fire departments, EMS, health clubs, schools, and other organizations. The Food and Drug Administration (FDA) has determined that this action is a Class I recall. Any adverse reactions experienced with the use of this product and/or quality problems should also be reported to the FDA’s MedWatch Program by phone at 1-800- FDA-1088, or on the MedWatch website at www.fda.gov/medwatch.

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Proper Calculation And Payment Of Overtime

In addition to illegally failing to pay overtime in the first place, many employers accidentally or intentionally fail to properly calculate or pay overtime for workers who are entitled to overtime.

One common employer violation occurs when employers try to calculate overtime entitlement based on an 8-hour day or 80-hour two-week pay period.  The standard rule is that overtime must be paid at a rate of time-and-a-half for every hour over forty that an employee works in a given week.

Employers cannot avoid overtime by working employees only seven or eight hours a day six days a week because overtime is usually determined on a weekly, not daily, basis.  Thus, if your employer requires you to work seven or eight hours a day for six out of seven days of the week, you are entitled to overtime because your total hours will be more than forty, even though you never worked more than eight hours in a single day.   Of course, there is a drawback to that general rule — you can be required to work without overtime as many hours in a single day which your employer desires as long as you do not exceed forty hours for that entire week.  Some employers have their workers on a four-day schedule and forty hours are crammed into those four days.  That’s a lot of work, but it’s not illegal because those employees do not exceed forty hours for the week.

Another frequent error happens when employers that pay on a bi-weekly basis try to avoid overtime by not having the employees exceed eighty hours for the entire two-week pay period.  That is also illegal because overtime is determined on a weekly basis, regardless of the employer’s pay schedule.  Employers violate the law by having employees work fifty hours one week and then thirty the next for a total of eighty during the two-week pay period without paying overtime.  The employer has to pay ten hours of overtime for the week in which the employee worked fifty hours even though only eighty hours were worked in the two-week pay period.

There is an exception to the above rules for certain classes of employees, such as hospital workers.  By prior written agreement employees in that special class can consent to an “8 and 80” arrangement, under which they are paid overtime if they exceed eight hours in a day or eighty hours in a two-week period.  But that possibility only exists for a narrow class of employees and has to be agreed to in advance or the standard forty- hour weekly determination rule governs.

Private employers also violate overtime law when they compensate employees for overtime through “comp time,” gifts, or other non-wage items.  Federal law only allows private employers to pay overtime in one form — 1.5 times the employee’s usual hourly rate (or equivalent if the employee is salaried or paid a set fee).  Payment in any other form is illegal.  Public employers are an exception to that rule and may compensate overtime through either the premium time-and-a-half rate or through “comp time.”

I can help you with any overtime law  questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Overtime Rights For Computer Employees

There is no general exemption for employees who “work with computers.” Many employees in the computer industry, or who work with computers in their jobs, will not be exempt employees. The following types of work are not likely to be exempt: Keeping tape libraries, inputting data, preparing flow charts or diagrams showing the order in which a computer must perform operations, preparing operator instructions, running computers, fixing computers (including “debugging”), staffing “help desks” (or “help lines”).

Computer workers may be exempt under any of the “white collar exemptions,” as bona fide executive or administrative employees. For example, a “network administrator” may be performing administratively exempt job duties. There are, in addition, some special rules which apply to employees who work with computers and permit them to be classified as exempt even if they don’t meet the usual requirements for exempt executives or administrators. However, there are special provisions which exempt some computer employees who might not otherwise qualify as “professionally” exempt. These include systems analysts, programmers (who “write code”), or software engineers. More specifically, the special computer employee exemption applies to workers who apply systems analysis techniques and procedures to determine hardware, software, or system functional specifications, or who design, develop, test or modify computer systems or programs based on user or design specifications.

The special computer employees exemption does not include workers whose primary duties are manufacturing or repair of computer hardware, nor employees who are not primarily engaged in systems analysis, programming or software engineering even if their jobs are highly dependent on using computers. (An example might be drafters who use computer-aided design software.)  Nor does the computer exemption cover IT employees who are basically troubleshooters.  Those types of IT workers are generally nonexempt employees who are entitled to overtime pay.

Workers who meet the standards of the special computer employee regulations need not be paid on a salary basis to be exempt. The salary tests as applied to computer workers permit them to be paid either at least $23,600 per year ($455 per week) on a salary basis, or on an hourly basis at a rate not less than $27.63 per hour.

I can help you with any overtime law  questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Chevy Cruze Product Defects

Chevrolet is recalling over 2,000 of its popular Cruze model compact cars because of a potential problem with the steering wheel column that could result in the steering wheel literally coming off in the driver’s hands. It happened to one Cruze driver recently.  The single incident did initiate the recall of 2,100 model year 2011 Cruze vehicles, since once is enough when it comes to a steering wheel falling into a driver’s lap (it’s right up there with a gas pedal getting stuck).

According to the NHTSA recall database, the problem is that some steering wheels may have been improperly fastened during manufacturing, and could separate from the steering column. General Motors (which owns Chevrolet) says that GM and Chevrolet dealers will inspect (free of charge) the steering wheel and steering column of affected Cruze models to ensure proper assembly. If you own a Cruze vehicle that’s being recalled, you’ll likely be hearing from GM or your dealer soon, if you haven’t been contacted already. You can also get in touch with Chevrolet directly at 1-800-630-2438 or visit GM’s website for car owners.

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

Iowa Attorney General Sues Contractor For Fraud

The Des Moines Register  has reported that the Iowa Attorney General’s office has sued an Iowa contractor for fraud.  Here is a link to the story:

http://www.desmoinesregister.com/article/20110603/NEWS/110603012/Register-exclusive-Iowa-AG-sues-central-Iowa-contractor-for-fraud

The target of the suit is IQ Renovation.  The attorney general seeks an injunction preventing IQ Renovation and its owners “from soliciting any more contracting and renovation business through advertising, telemarketing, and trade shows.”

According to the Register “the company’s fliers promise that its work is ‘100 percent guaranteed’ and licensed and insured.  Customers are typically required to sign purchase agreements and make down payments of 50 to 100 percent.”

This lawsuit highlights a number of issues that I’ve encountered in individual construction defect lawsuits.  The “100% guarantee” is absolutely meaningless because, like any other construction defect case, you still have to prove at your expense that the guarantee was not met.  And, as I’ve noted in other posts, Iowa law already imposes a “guarantee” in the form of the implied warranty of workmanship.  So the 100% guarantee is simply marketing fluff designed to get your attention.

The promise of insurance is also a problem.  First, even if a contractor has insurance and submits your claim to its insurer, the insurance company, not the contractor, has the sole authority to decide whether the claim will be covered and in what amount.  The insurance company could deny coverage or contest liability or the amount of your claim.   Second, many contractors lie about having insurance coverage.  If the contractor does not have insurance coverage despite a promise to the contrary, there’s really not much you can do besides sue the contractor for even more money and hope that it can pay any judgment you get.

The same is true for false claims of licensing.   That doesn’t add anything to your legal claims — you’re still stuck suing the contractor for defective work.  The lack of a license may add to your claims of defective construction, but you can’t really get any extra money for the false licensing representation, although that claim, or any false claims about insurance, could bring you under the private consumer fraud statute, which would at least allow you to recover attorney fees, assuming your contractor has the ability to pay them.

The bottom line is that it’s best to do everything you can to protect yourself in advance.  Research any contractor you are considering hiring.  Check the attorney generals office, the Better Business Bureau, and Iowa Courts Online to see whether the contractor or any of its owners have had any problems.  Check the federal courts’ online resources to see if the company or any of its owners have ever declared bankruptcy.  Check the Iowa Secretary of State’s corporate information web page to make sure that the contractor is a legitimate, licensed business and not some HyVee bulletin board here today, gone tomorrow outfit.  Find out if any of the contractor’s owners has a serious criminal record.  Honestly, if you get a hit on any of that you should look elsewhere for your contracting needs.

If it’s a small contractor, you should inquire about the owner’s direct involvement and supervision.  You should also demand to see proof to back up any claims of insurance or licensing.

Don’t pay too much up front — leaving little or nothing for the contractor to come back for only ensures that you will be the last project on the contractor’s to-do list and the job won’t be done very well.  What does the contractor care since it already has your money?   If the contractor insists on too much in advance, remind it that, unlike you, it is protected if you fail on your end of the deal because it can always file a mechanic’s lien and force the sale of your house if you don’t pay.  If the contractor still insists on more than 50% up front, call someone else.

I hope that this information helps and enables you to protect yourself before problems arise.  But if you do have a construction defect law issue with a contractor, feel free to give me a call and I’ll see if I can give you a hand.

 

Defective Hip Implant Products

The Food and Drug Administration is calling on hip implant manufacturers, including Johnson & Johnson, to study the incidents of metal poisoning, including cobalt and chromium poisoning, in patients who have been implanted with hip devices. The agency’s concerns came after a number of incidents reported from around the country, involving metal ions from these devices leeching into the bloodstream and causing illnesses.

The Food and Drug Administration’s most recent action indicates that the agency is now taking more seriously the concerns from the use of these devices. Hip implant devices have been under scrutiny over the past few years, as these devices have become increasingly linked to a number of complications, including failure of the device and revision surgeries  In some cases, doctors who operated on these patients found large masses of dead tissue around the site of the implant. The high failure rate of these devices has been just one of the several complications associated with their use.

Metal poisoning of the blood has been another serious issue. In some cases, metal ions from the implants have leached into the bloodstream of the patient. These metal ions include cobalt and chromium, and the presence of these ions has led to a number of complications, including those affecting the thyroid gland and the nervous system.

The Food and Drug Administration says that it doesn’t have enough information to indicate what level of metal ions in the blood could cause serious health effects.   However, the agency does mention on its website that in some cases, this kind of metal poisoning has been linked to cardiac, nervous system, or thyroid gland disorders.  This is why the agency wants hip implant manufacturers to study the link between the hip implants, and the levels of metal ions in the blood reported by patients.

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