Employee Handbooks Are Useless For Terminated Employees

Under Iowa law, employers are free to disregard their employee handbooks at their discretion as long as they provide a conspicuous disclaimer in the handbook or on a separate document signed by employees.  So that glossy, snazzy-looking, 100-page, 15-chapter employee handbook of yours, with lots of Roman numerals and sections, is actually worthless because your employer has almost certainly provided the necessary disclaimer that allows it to disregard the handbook at any time for any reason.

A while back, the Iowa Supreme Court ruled that employee handbooks could constitute a contract between employers and employees.  Employers had to follow the provisions of the handbook, most importantly for discipline and termination.  An employer’s failure to do so could result in a lawsuit against it for breach of the employee handbook/contract.

Employers then wizened up and began adding disclaimers to their employee handbooks.  A typical handbook disclaimer states that the employee handbook is not a contract and that the employer has the right to change or ignore the handbook and fire anyone at any time for any reason.  The Iowa Supreme Court has now held that such disclaimers, as long as they’re conspicuous and made known to the employee, eliminate any contract arguments and give the employer the absolute right to alter or ignore the employee handbook.

That’s why I believe that employee handbooks are useless.  In my opinion, they exist solely for employers’ protection.  Employers will always enforce handbook language when that’s to their benefit.  Employers will usually disregard handbook language when that’s to their benefit.  Since the disclaimer gives employers absolute power over the handbook, they will enforce or ignore the handbook as they deem necessary for their protection.

There are some circumstances in which an employer cannot deviate from or alter the handbook.  For example, employers cannot alter or disregard a handbook for only certain races, nationalities, or religions.  Any deviations or alterations have to be uniform to avoid the possibility of a discrimination claim.  Employers also want to be careful about disregarding the handbook when there’s a possibility of a wrongful termination claim.  A discharged employee may use deviations from a handbook’s discipline or discharge provisions in a wrongful termination claim to help prove that the employer really wanted to get rid of the employee for some unlawful reason.

Even if the handbook does not have a disclaimer, employees still have to prove that the handbook constitutes an enforceable contract.  Not all handbooks do.  The Iowa Supreme Court has been very hard on employee handbook claims because it does not want to have to review every employment situation to determine whether some employer followed some sentence on page 67 of its employee handbook.  So in handbook cases employers typically utilize a three-prong attack: (1) the handbook’s disclaimer kills the claim; (2) if that fails, then the handbook’s language does not create an enforceable contract; and (3) if that fails, the employer complied with the enforceable language of the handbook.  It’s a rare handbook violation case that can successfully run that gauntlet of defense arguments.

As I said, handbook issues usually arise in the context of employee discharges.  Here’s a common example:  An employee gets fired for a ticky-tack reason, say being five minutes late.  That was the employee’s first violation of the employer’s rules.  The employer’s handbook provides for “progressive” discipline, meaning that an employee has to mess up a few times and progress through a series of increasing sanctions beginning with a reprimand up to termination.  The handbook only allows for immediate termination for the most serious transgressions.   If the employee handbook does not have the disclaimer language, the employee might be able to argue that a minor tardy was not a “serious” violation and that the employer breached the handbook by immediately firing him, rather than resorting to the progressive discipline policy.  Conversely, if the employer has the disclaimer language, as employers usually do, then this employee is out of luck and out of a job.

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

Federal Reminder About Toy Safety For The Holidays

The U.S. Consumer Products Safety Commission recently issued a bulletin regarding toy safety during the holiday season:

“It’s that time of year again, when parents, grandparents, and friends begin to prepare holiday toy shopping lists. The U.S. Consumer Product Safety Commission (CPSC) wants consumers to know that while safety should be at the top of everyone’s toy list, stronger federal rules are making a positive impact and restoring confidence in the safety of toys.

New toy safeguards include: establishing the lowest lead content and lead paint limits in the world; setting a stringent limit on the use of certain phthalates; converting the voluntary toy standards into mandatory standards; requiring third party testing and certification of toys designed or intended primarily for children 12 and younger; closing in on new limits for cadmium in toys; and working with the U.S. Department of Homeland Security to track shipments in transit from other countries, thereby increasing seizure of dangerous imported toys.

These safeguards, along with safety-conscious steps taken by many toy makers and sellers, have contributed to a continued decline in toy recalls since 2008. There were 34 toy recalls in fiscal year 2011. This is down from 46 toy recalls in fiscal year 2010, 50 recalls in 2009, and 172 recalls in 2008. In 2011, toy recalls related to lead declined to 4, down from 19 in 2008.

“Strong toy standards support the production of safer toys in the marketplace,” said Chairman Inez Tenenbaum. “Parents and toy shoppers also always need to be vigilant by choosing age appropriate toys and keeping small parts, balls, and balloons out of the hands of young children.”

Toy-related deaths to children younger than 15 increased to 17 fatalities reported in 2010, up from 15 reported in 2009. Nearly half of these toy-related fatalities were attributed to choking on balloons, small balls, and rubber balls.

A new report (pdf) released by CPSC today also notes that about 181,500 children younger than 15 years of age were treated in U.S. hospital emergency departments due to toy-related injuries in 2010. Nonmotorized scooters continued to be the category of toys associated with the most injuries. Frequently these injuries involved lacerations, contusions, and abrasions to the child’s face and head. Importantly many of the incidents were associated with, but not necessarily caused by, a toy.

Here are some safety steps that consumers can take while shopping this holiday season:

• Balloons – Children can choke or suffocate on deflated or broken balloons. Keep deflated balloons away from children younger than 8 years old. Discard broken balloons at once.
• Small balls and other toys with small parts – For children younger than age 3, avoid toys with small parts, which can cause choking.
• Scooters and other riding toys – Riding toys, skateboards, and in-line skates go fast, and falls could be deadly. Helmets and safety gear should be worn properly at all times, and they should be sized to fit.
• Magnets – For children under age 6, avoid building or play sets with small magnets. If magnets or pieces with magnets are swallowed, serious injuries and/or death can occur.

Once the gifts are open:

• Immediately discard plastic wrappings or other packaging on toys before they become dangerous play things.
• Keep toys appropriate for older children away from younger siblings.
• Charging batteries should be supervised by adults. Chargers and adapters can pose thermal burn hazards to young children. Pay attention to instructions and warnings on battery chargers. Some chargers lack any mechanism to prevent overcharging.

Along with educating the public, CPSC is committed to working with foreign and domestic toy manufacturers, importers, and retailers to help them understand and comply with U.S. toy requirements.”

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12042.html

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.

Choose Safety Over Savings And Turn On Your Headlights When Conditions Require

I want to talk about a driving habit that drives me nuts and becomes especially common from October through April when it’s nearly dark, raining, foggy, sleeting, or snowing, or sometimes a combination of all of these, to the point that you can barely see the road and the vehicles and pedestrians on or near it.  What drives me nuts are people who, in very poor visibility, intentionally drive without their headlights on, apparently in an effort to increase their gas mileage or the life of their headlights.   I especially love trying to see small, gray or white, unlit cars through the windshield wipers, road spray, and mist.  Such situations are a recipe for disaster and car accidents causing personal injuries or wrongful death.

Let’s review Iowa’s law regarding headlight usage.  Iowa Code 321.384(1) is mandatory, not optional:  “Every motor vehicle upon a highway within the state, at any time from sunset to sunrise, and at such other times when conditions such as fog, snow, sleet, or rain provide insufficient lighting to render clearly discernible persons and vehicles on the highway at a distance of five hundred feet ahead, shall display lighted headlamps. . . .”  (emphasis added).  There’s no exception for money or energy saving measures that allows a driver to opt-out of the headlight requirement and endanger everyone else on the road.

500 feet is approximately a tenth of a mile.  It’s the length of nearly two football fields.  In other words, it’s a long distance, and there’s no way that in bad weather, particularly during morning and evening rush hour (when the sun’s just below or barely above the horizon and not doing much good, especially behind a cloud cover) anyone can clearly see 500 feet in front of them.  So virtually every time someone’s intentionally driving headlight-less in bad weather to save a nickel or two, that driver’s also violating the law.

Besides the fact that this is a crime, it’s also extremely dangerous (which is probably why it’s a crime).  Imagine the horrific collision that will occur if someone pulls out or turns left in front of you because, with the bad weather swirling all around and messing up visibility, that driver didn’t see your unlit vehicle that’s only visible if you concentrate real hard and squint for at least five seconds.  Worse, imagine killing a pedestrian who thought that traffic had cleared and started to cross, not realizing that there was a virtually invisible car bearing down on them until it was too late.

On balance, the small amount of money that could be saved by breaking the law and keeping your headlights off in bad weather is vastly outweighed by the danger you’re causing to yourself, your passengers, other motorists, and pedestrians.   So, if you find yourself in bad weather surrounded by a sea of headlights, take that as a hint and join the crowd by flipping that headlight switch to the on position.  It’s the law, and no one is entitled to break it, especially not to just save a little money.

Wolfgang Puck Appliance Recall

The U.S. Consumer Products Safety Commision has issued an advisory regarding a Wolfgang Puck grill/griddle product:

Name of Product: Wolfgang Puck Electric Reversible Tri-Grill/Griddles

Units: About 27,000

Importer: W.P. Appliances Inc., of Hollywood, Fla.

Manufacturer: YouO Electric Appliances Co. Ltd., of China

Hazard: A defect in the electrical wiring of the electric grills/griddles can pose a risk of overheating, melting and an electrical shock hazard to consumers.

Incidents/Injuries: The firm has received four reports of electrical shock and two reports of melted plastic housing.

Description: This recall includes Wolfgang Puck brand combination electric grills/griddles with dual thermostatic controls and model number BRTGG010. The grills measure about 14.5 inches in width, 11 inches in depth and 6.5 inches in height. The model number is located on an ETL/Intertek foil sticker label affixed to the bottom of the unit. The stainless steel grills/griddles have “Wolfgang Puck Bistro Collection” stamped on the front of the unit next to the control dials. They feature a stainless steel handle used to compress the top and bottom grill plates.

Sold exclusively by: The Home Shopping Network (HSN) nationwide, HSN’s telephone ordering system and online at http://www.HSN.com for about one week between April 30, 2011 through May 6, 2011 for about $100.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled combination grills/griddles and contact W.P. Appliances for instructions on returning the grills/griddles for a full refund.

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.

Feds Remind You To Change Batteries In Smoke And Carbon Monoxide Detectors

A reminder from the U.S. Consumer Products Safety Commission about the importance of changing batteries in smoke detectors and carbon monoxide detectors:

The U.S. Consumer Product Safety Commission (CPSC) is reminding consumers when changing clocks this weekend to change the batteries in smoke alarms and carbon monoxide (CO) alarms, too. Daylight Saving Time ends on Sunday, November 6 this year.

“Smoke and carbon monoxide alarms save lives by alerting you to a fire or CO buildup. They can’t do their job if the batteries aren’t working,” said CPSC Chairman Inez Tenenbaum. “Protect your family by replacing smoke and CO alarm batteries at least once each year.”

In addition to changing batteries every year, CPSC recommends consumers test their alarms monthly. Place smoke alarms on every level of the home, outside sleeping areas, and inside each bedroom. About two-thirds of fire deaths occur in homes with either no smoke alarms or smoke alarms that don’t work.

Fire departments responded to more than 386,000 residential fires nationwide that resulted in nearly 2,400 deaths, more than 12,500 injuries, and $6.92 billion in property losses annually, on average, from 2006 through 2008.

In addition to changing batteries in smoke alarms, CPSC urges consumers to stay in the kitchen while cooking to help prevent fires. Cooking fires accounted for the largest percentage of home fires, an annual average of nearly 150,000 or 38.7 percent, from 2006 through 2008.

CO alarms should be installed on each level of the home and outside sleeping areas. CO alarms should not be installed in attics or basements unless they include a sleeping area. Combination smoke and CO alarms are available to consumers.

Carbon monoxide is an odorless, colorless, poisonous gas that consumers cannot see or smell. An average of 184 unintentional non-fire CO poisoning deaths associated with consumer products, including portable generators, occurred annually from 2005 through 2007.

To protect against CO poisoning, schedule an annual professional inspection of all fuel-burning appliances, including furnaces and chimneys. Home heating systems were associated with 70 deaths, or 38 percent of CO poisoning deaths, in 2007, the largest percentage of non-fire CO poisoning deaths.

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.

Eggshell Or Aggravation? An Important Concept For Personal Injury Cases

Sometimes personal injury or wrongful death claimants have a “preexisting condition.”  That’s lawyer-speak that means you’ve been hurt before.  The impact, if any, of that preexisting condition on your legal rights is analyzed under the related theories of “eggshell plaintiff” and “aggravation of injury.”

Simply put, if you’re seeking money for physical injuries, perhaps in a car accident, motorcycle crash, dog bite, or police brutality case, the eggshell theory is good and the aggravation concept is bad.  Flip that statement if you’re defending a personal injury claim or happen to be an insurance company.

An eggshell plaintiff is someone who, because of an earlier injury, is more susceptible to re-injury of the same area of the body than a normal person would be.  On the other hand, the aggravation theory applies if a person has an ongoing injury that is aggravated by a second injury-causing event, which then amplifies or aggravates the symptoms of the original, preexisitng injury.

The key distinction between the eggshell and aggravation theories is that an eggshell plaintiff has completely healed by the time of the injury-causing event while an aggravation plaintiff has not completely healed and instead has ongoing problems because of an existing injury.  Under Iowa law, defendants take their victims as they get them, so if an “eggshell” plaintiff gets hurt worse than a normal person would have, that’s the defendant’s problem and the defendant has to deal with the greater damages exposure because of the misfortune of hurting someone who was more susceptible to injury.

Here’s an example of the two theories:  Say you broke your arm as a child.  It heals as best it can, but the bone is never as strong as it was before you broke it.  Decades later you’re in a car crash and break the same arm, an injury that wouldn’t have happened to most folks but happened to you because of the break years earlier when you were a kid.  That’s an eggshell plaintiff situation and the defendant is responsible for 100% of the injuries to your arm, even though many people who had not previously broken their arm would not have suffered a broken arm in the collision.  Remember, defendants take their victims as they get them, and that includes earlier injuries that make a victim more susceptible to injury in the present day.

Conversely, if you’d broken that arm just two weeks before the car crash and the bones were still healing, but the fracture was worsened by the collision, that would be an aggravation situation and the defendant would only be liable for the amount of injuries and damages that occurred because of the aggravation of the injury during the crash.  That is an aggravation, not eggshell, situation because you had not completely healed at the time of the collision.

You can see why the eggshell vs. aggravation distinction is heavily contested in cases that involve a plaintiff with an earlier injury.  The plaintiff wants to prove the eggshell theory; the defendant needs to argue that it’s actually an aggravation of injury situation.  This is frequently an issue that gets fought between competing medical experts.

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