You Do Not Have The Right To Remain Silent, You Do Not Have The Right To An Attorney — The Nonexistent Right To Counsel In Employment Matters

Think you always have the right to talk to an attorney before signing something your employer hands you?  Think you always have the right to hire an attorney to challenge a disciplinary decision that your employer makes about you?  Think you always have the right to have an attorney present during a meeting with your employer about a personnel issue?  Think again.

A common area of misperception in the employment rights context is employees’ belief that they always “have a right to talk to a lawyer” before (fill in the blank) or “get a lawyer to” (fill in the blank).  Wrong.  In truth, the Iowa Supreme Court has never determined that such a general right exists in Iowa.  There are narrow exceptions, as summarized below, but in general there are no legal rights concerning most employment decisions, including having legal counsel involved in a personnel or employment matter.

Most recently, in the April 2013 case of Jyll M. Newell v. JDS Holdings, L.L.C., the Iowa Court of Appeals ruled against an employee who claimed that she was fired in retaliation for consulting with an attorney about employment matters, including whether to sign a form acknowledging receipt of an employee handbook.  The court questioned whether there was a protected right to consult with an attorney under such circumstances.

The Iowa Supreme Court also considered this issue in the 2003 case of Davis v. Horton.  That employee claimed she was fired in retaliation for hiring an attorney to challenge a disciplinary suspension imposed by her employer.  The Iowa Supreme Court disagreed and fired a warning shot across the bow of employees who think that they have an absolute right to hire counsel to challenge an employer’s disciplinary decision:  “On the facts of the present dispute it is clearly impossible to separate Davis’s act in hiring an attorney from her act in challenging a personnel decision made by her employer. Because an at-will employee may expect an adverse reaction to an attempted rebuke of an employer’s personnel decision, that act should not be insulated from sanction merely because it has been carried out through an attorney.”

My reading of the current caselaw in Iowa is that consulting or threatening to consult an attorney is the only activity that’s possibly protected from retaliation.  The Iowa Supreme Court has yet to answer that question.  But, even if a right to consult legal counsel in basic employment matters is ever recognized, it’s probably a mostly empty right.  That’s because Iowa law presently holds that generally, lawyer or no lawyer, employees can be lawfully fired for challenging an employer’s decision or failing to follow an employer’s instructions.  So hiring a lawyer doesn’t do much good since, as in the Davis case noted above, anything that attorney does for you in relation to your employer can get you fired.  So you might have a right to consult an attorney, but you don’t have a right to follow the attorney’s recommendations or actually use the attorney in any manner, which makes consulting an attorney useless.

Of course, there are narrow exceptions to those rules, but those exceptions usually arise in the context of some state or federal statutory right, for example civil rights, wage and overtime, or workers compensation laws.  Employees need to be careful about how they handle common employment/personnel matters that don’t fall within one of the state or federal statutory areas that get courts excited.  The great majority of personnel decisions or instructions cannot legally be challenged without fear of reprisal.

3T Design Recalls Cervélo Bicycles with Aura Pro Handlebars Due to Risk of Injury

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

Cervélo Bicycles with Aura Pro Handlebars

Hazard:

The bicycle’s handlebar clamps can detach during riding causing the rider to lose control, posing a risk of injury.

Consumer Contact:

3T Design Ltd. at (800) 223-3207 from 9 a.m. to 5 p.m. CT Monday through Friday, or online at www.3tcycling.com and click on Recall for more information.

Description

The Aura Pro custom bicycle handlebars are original equipment on the 2013 Cervélo P-Series bicycles which come in black, gray and red color combinations. The handlebars are finished in gloss black with “3T,” AURA-PRO,” and “ULTIMATE-PERFORMANCE” in white on the handlebar’s top surface. The recall includes the P3 with Shimano Ultegra and P5 Three with SRAM Red bicycle models. “Cervélo” and “P3” or “P5” appear on the bicycle’s frame.

Incidents/Injuries

3T Design has received one report of an incident resulting in minor injuries.

Remedy

Consumers should stop using their bicycles immediately and contact 3T Design to obtain a free repair kit that includes four replacement bolts and instructions. Consumers can follow the instructions to replace the handlebar’s bolts or take the bicycle to a Cervélo authorized dealer for a free repair.

Sold at

Cervélo bicycle retailers nationwide from September 2012 through January 2013 for about $3,600 for the P3 with Shimano Ultegra bicycle and about $6,000 for the P5 Three with SRAM Red bicycle with these handlebars.

Distributor

Cervélo Cycles Inc., of Toronto, Canada

Manufacturer

3T Design Ltd., of Hong Kong

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/3T-Design-Recalls-Cervelo-Bicycles-with-Aura-Pro-Handlebars/

 

 

The Basics Of Iowa’s Private Consumer Fraud Statute

For the past few years Iowans have been able to act as “private attorneys general” under Iowa’s Consumer Fraud Act, Iowa Code Chapter 714H.  That statute applies to consumers who lose money or property due to deception, misrepresentation, or other unfair selling or advertising practices, and allows them to seek damages and attorney fees if they win.  These claims can be brought for legal issues as varied as business practices or contract law claims, construction defects, personal injury or wrongful death, or products liability.  So what exactly is a private consumer fraud claim?

A person cannot engage in a practice or act that the person knows, or reasonably should know, is an unfair practice, deception, fraud, false pretense, or false promise, or a misrepresentation, concealment, suppression, or omission of a material fact, with the intent that others rely upon the unfair practice.  A claimant alleging an unfair practice must prove that the prohibited practice related to a material fact or facts; the deception cannot merely be incidental to the consumer transaction.  A consumer who suffers an ascertainable loss of money or property as the result of a prohibited practice or act in violation of this chapter may bring a private civil suit to recover actual damages and, in some cases, treble damages and attorney fees.

Actual damages may include, but are not limited to, out-of-pocket expenses caused by the prohibited act, equitable relief, reasonable attorney fees and court costs.  In addition to an award of actual damages, statutory damages up to three times the amount of actual damages may be awarded if the finder of facts finds clear and convincing evidence of willful and/or wanton disregard for the rights or safety of others pursuant to this chapter.

A suit brought under this law must be filed within two years of the occurrence giving rise to the cause of action, or within two years or longer only if it was not reasonable to discover a violation under this chapter in two years.

Huffy Recalls Slider Tricycles Due to Loss of Control Hazard; Sold Exclusively at Toys R Us

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

2012 Huffy® 20-Inch Slider Tricycle

Hazard:

The handlebar can unexpectedly loosen while in use, causing the rider to lose control. This poses crash and fall hazards for the rider.

Consumer Contact:

Huffy toll-free at (888) 366-3828 from 8 a.m. to 8 p.m. ET Monday through Friday or online at www.huffybikes.com and click on “Product Recall” on the bottom of the page.

Units

About 5,040

Description

The recalled product is 2012 model year 20-inch, three-wheeled Slider. The tricycle has a white frame with a black seat and black handlebars. “Huffy” is printed on the front of the frame; “Slider” is printed on the frame’s side. The model number, 98682, is located on the frame under the seat.

Incidents/Injuries

None reported

Remedy

Consumers should immediately stop using the tricycle and contact Huffy for instructions on how to obtain a refund.

Sold exclusively at

Toys R Us nationwide from January 2013 through February 2013 for about $100.

Importer

Huffy Corp. of Centerville, Ohio

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/Huffy-Recalls-Slider-Tricycles/

Six Retailers Announce Recall of Buckyballs and Buckycubes High-Powered Magnet Sets Due to Ingestion Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

Buckyballs and Buckycubes high-powered magnet sets

Hazard:

These products contain defects in the design, warnings and instructions, which pose a substantial risk of injury and death to children and teenagers.

Consumer Contact:

Barnes & Noble, toll-free at (855) 592-2993 , www.barnesandnoble.com

Bed Bath & Beyond, toll-free at (800) 462-3966, www.bedbathandbeyond.com

Brookstone, toll-free at (866) 576-7337 or online at www.brookstone.com

Participating Hallmark retailers, toll-free at (800) 425-5627 or online at www.hallmark.com/recall-product/

Marbles the Brain Store, toll-free at (877) 527-2460  or online at www.marblesthebrainstore.com

ThinkGeek, toll-free at (888) 433-5788 or online at www.thinkgeek.com/buckyballs/index.shtml

The U.S. Consumer Product Safety Commission (CPSC), in cooperation with six retailers, is announcing the voluntary recall of all Buckyballs and Buckycubes high-powered magnet sets sold by these companies. CPSC continues to warn that these products contain defects in the design, warnings and instructions, which pose a substantial risk of injury and death to children and teenagers.

Imported by Maxfield & Oberton LLC, of New York, N.Y., Buckyballs and Buckycubes consist of sets of numerous, small, high-powered magnets. These sets vary in the number of magnets included and come in a variety of colors. Individual magnets in the set are about 5 millimeters in diameter. Individual magnets in Buckyballs are spherical and individual magnets in Buckycubes are cube-shaped.

About three million sets of Buckyballs and Buckycubes have been sold in U.S. retail stores nationwide and online since 2010 for between $5 and $100.

Consumers should take the high-powered magnet sets and all associated individual magnets away from children and teenagers and contact the retailer from which they purchased the product to obtain instructions for their remedy:

• Barnes & Noble, toll-free at (855) 592-2993 or online at www.barnesandnoble.com and click on “Product Recalls”
• Bed Bath & Beyond, toll-free at (800) 462-3966 or online at www.bedbathandbeyond.com and select “Safety and Recalls” under Customer Service, then click on Recall Information
• Brookstone, toll-free at (866) 576-7337 or online at www.brookstone.com and click on “Recall Information” under Shop Brookstone
• Participating Hallmark retailers, toll-free at (800) 425-5627 or online at http://www.hallmark.com/recall-product/

 

• Marbles the Brain Store, toll-free at (877) 527-2460  or online at www.marblesthebrainstore.com

• ThinkGeek, toll-free at (888) 433-5788 or online at www.thinkgeek.com/buckyballs/index.shtml

These retailers have agreed to participate because Maxfield & Oberton  has refused to participate in the recall of all Buckyballs and Buckycubes.

In July 2012, CPSC staff filed an administrative complaint against Maxfield & Oberton Holdings LLC, of New York, N.Y., after discussions with the company and its representatives failed to result in a voluntary recall plan that CPSC staff considered to be adequate to address the very serious hazard posed by these products. This type of legal action against a company is rare, as CPSC has filed only four administrative complaints in the past 11 years.

CPSC has received 54 reports of children and teens ingesting this product, with 53 of these requiring medical interventions.

Source:  http://www.cpsc.gov/en/Recalls/2013/Six-Retailers-Announce-Recall-of-Buckyballs-and-Buckycubes-High-Powered-Magnet-Sets/

Product Manufacturers’ Liability For Failing To Warn Of Product Dangers

Sellers or distributors of products can be liable under various products liability theories for personal injury or wrongful death.  One main category of products liability is “failure to warn or instruct.”  Under a warnings or instruction theory, a defendant can be liable for putting a product on the market without adequate warnings or instructions.

In order to recover on a claim that a manufacturer’s product was defective because of inadequate instructions or warnings, the injured party must prove that the defendant sold or distributed the produce, that the defendant was engaged in the business of selling or distributing the produce, that the foreseeable risks of harm posed by the produce could have been reduced or avoided by the provision of reasonable instructions or warnings, that the omission of the instructions or warnings rendered the produce not reasonably safe, and that the risk to be addressed by the instructions or warnings was not obvious to, or generally known by, foreseeable product users.

Companies can also have a duty to warn of product dangers even after a produce has been sold or distributed.  A supplier of a product has a duty to warn the users of the product following sale or distribution if the supplier knows or should reasonably know that the product poses a substantial risk of harm to persons or property, the supplier can identify those to whom a warning should be provided and it may reasonably be assumed those persons are unaware of the risk of harm, a warning can be effectively communicated to and acted on by those to whom a warning might be provided, and the risk of harm is sufficiently great to justify the burden of providing the warning.  Under those circumstances, the supplier has a duty to exercise reasonable care to inform the users of the product of the dangerous condition or of the facts which make it likely to be dangerous.

Home Depot Recalls CE Tech Riser Cable Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

 

Name of product:

CE Tech 1,000 ft. Riser Cable

Hazard:

The riser cable does not meet fire resistance standards for riser cable, posing a fire hazard.

Consumer Contact:

Home Depot at (800) 394-7519 from 8 a.m. to 5 p.m. ET Monday through Friday or online at www.homedepot.com and click on Product Recalls for more information.

Units

About 11,300

Description

This recall involves 1,000 ft. CE Tech riser cable sold in boxes of 1,000 ft. lengths. It is intended to run between floors of a building as data cable. This type of cable must self-extinguish in a fire. The cable is gray and marked (UL) E316395. The cable’s box is blue and black and is marked CE Tech 1,000 ft. riser cable, Cat 6 23-4.

Incidents/Injuries

None reported

Remedy

Consumers should remove the recalled cable and return it to Home Depot for a full refund.

Sold exclusively at

Home Depot stores nationwide from January 2013 through February 2013 for about $100.

Importer

Home Depot U.S.A. Inc., of Atlanta, Ga.

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/Home-Depot-Recalls-CE-Tech-Riser-Cable/

Haier America Expands Recall of Chest Freezers Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product:

Chest Freezers

Hazard:

A capacitor in the freezer’s circuitry can overheat, posing a fire hazard.

Recall Details

Units

About 41,000, 67,500 additional freezers were recalled in November 2010

Description

This recall involves the Haier® models HNCM070E with 7.0 cubic foot capacity and ESNCM053E with 5.3 cubic foot capacity, and Black & Decker® model BFE53 with 5.3 cubic foot capacity white chest freezers.  “Haier” is printed on the upper-left corner of the freezer, or “Black & Decker” is printed on the front upper-right corner of the freezer.  “Haier” or “Black & Decker,” the model number, the unit’s serial number and other information are printed on a rating label at the top center of the back of the freezer.  The recalled Black & Decker model BFE53 freezer also has a label adjacent to the rating label with the UPC number 896603002660 printed on it.

Freezers with serial numbers beginning with the following numbers are recalled:

Haier Model HNCM070E		Haier Model ESNCM053E		Black & Decker Model BFE53 with UPC896603002660
0907	1001	0907	1001	0907	1001
0908	1002	0908	1002	0908	1002
0909	1003	0909	1003	0909	1003
0910	1004	0910	1004	0910	1004
0911		0911	1005	0911	1005
0912		0912	1006	0912	1006
			1007		1007

 

Incidents/Injuries

In addition to the 18 incidents reported in the November 2010 recall, which included four reports of fires with minor property damage, Haier America and CPSC have received 27 additional incident reports. This includes three fires that caused substantial property damage. There have been no reports of injuries.

Remedy

Consumers should immediately unplug their freezer and contact the company to schedule an appointment for a free repair to the freezer.

Sold at

Haier model HNCM070E was sold by regional and local retailers nationwide and online at Amazon.com, Walmart.com and other online retailers from September 2009 through October 2011 for between $180 to $200. Haier model ESNCM053E was sold primarily on Amazon.com and other online retailers from February 2010 through March 2013 for between $200 to $290.  The Black & Decker model BFE53 was sold exclusively at Walmart nationwide and at Walmart.com from September 2009 through September 2010, for about $150.

Importer

Haier America Trading LLC, New York, N.Y.

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/Haier-America-Expands-Recall-of-Chest-Freezers/

 

 

Can Working From Home Be A Reasonable Disability Accommodation?

The Equal Employment Opportunity Commission has said that allowing an individual with a disability to work at home may be a form of reasonable accommodation. The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodation for qualified applicants and employees with disabilities. Reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job, or gain equal access to the benefits and privileges of a job. The ADA does not require an employer to provide a specific accommodation if it causes undue hardship, i.e., significant difficulty or expense.

Not all persons with disabilities need – or want – to work at home. And not all jobs can be performed at home. But allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.

The ADA does not require an employer to offer a telework program to all employees. But if an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such a program.

Additionally, the ADA’s reasonable accommodation obligation, which includes modifying workplace policies, might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home. For example, an employer may generally require that employees work at least one year before they are eligible to participate in a telework program. If a new employee needs to work at home because of a disability, and the job can be performed at home, then an employer may have to waive its one-year rule for this individual.  Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.

This determination should be made through a flexible “interactive process” between the employer and the individual. The process begins with a request. An individual must first inform the employer that s/he has a medical condition that requires some change in the way a job is performed. The individual does not need to use special words, such as “ADA” or “reasonable accommodation” to make this request, but must let the employer know that a medical condition interferes with his/her ability to do the job.

Then, the employer and the individual need to discuss the person’s request so that the employer understands why the disability might necessitate the individual working at home. The individual must explain what limitations from the disability make it difficult to do the job in the workplace, and how the job could still be performed from the employee’s home. The employer may request information about the individual’s medical condition (including reasonable documentation) if it is unclear whether it is a “disability” as defined by the ADA. The employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace. However, in some situations, working at home may be the only effective option for an employee with a disability.

The employer may select any effective accommodation, even if it is not the one preferred by the employee. Reasonable accommodations include adjustments or changes to the workplace, such as: providing devices or modifying equipment, making workplaces accessible (e.g., installing a ramp), restructuring jobs, modifying work schedules and policies, and providing qualified readers or sign language interpreters. An employer can provide any of these types of reasonable accommodations, or a combination of them, to permit an employee to remain in the workplace. For example, an employee with a disability who needs to use paratransit asks to work at home because the paratransit schedule does not permit the employee to arrive before 10:00 a.m., two hours after the normal starting time. An employer may allow the employee to begin his or her eight-hour shift at 10:00 a.m., rather than granting the request to work at home, if this would work with the paratransit schedule.

Disability discrimination cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  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.