Blawg Review #147

Welcome to a RAGBRAI inspired Blawg Review.  What is RAGBRAI?  The Register's Annual Great Bicycle Ride Across Iowa is an annual seven-day ride across the state.  Heading into its 36th year, RAGBRAI is the longest, largest and oldest touring bicycle ride in the world.  It's not a race.  It's an experience.   And since Blawg Review is a carnival, nothing says carnival in an uniquely Iowa way like bicycles, spandex, pork chops, pie, frivolity and 10,000 of your closest friends!

The weather in Iowa is frigid this winter.  As the weekend of this Blawg Review approaches Iowans brace for another heavy snow.  Our friend Charlie Longbrief looks at the floor below his stationary bike and dreams of summer.  A person can stand only so many YMCA spinning classes.  He thinks back to his first RAGBRAI as a twenty year old when law school hadn't yet entered his mind and the biggest celebrity on the ride was Oakland Raiders great and Miller Lite spokeman Ben Davidson.  Now it's nothing to see the likes of lawyer turned politician John Edwards or the bicycling legend himself, Lance Armstrong.  Armstrong may have participated in the famous New York City Marathon but his heart will always belong with RAGBRAI.  Listen for yourself:

Day 1:  Missouri Valley to Harlan  - 58 miles

This year's ride starts in the river town of Missouri Valley.  While performing the traditional dip of his back tire in the Missouri River, Charlie sees Liz Overton of the Iowa Law Blog who warns him that because of the $350,000 settlement in a 2004 RAGBRAI death bicyclers better beware of the new proposed legislation from the Iowa State Association of Counties.

Unfazed Charlie gets on his bike and sets out on his adventure.  But as he rides off he does ask himself whether Mad Kane is right.  Is it wise to travel with friends particularly where tents are involved?

About 15 miles down the road Charlie takes a break and starts getting an earful from New Yorker Eric Turkewitz about how State Farm has been hit with a RICO lawsuit over alleged sham medical exams.  That hasn't been reported elsewhere and Charlie worries whether State Farm might be doing the same thing in Iowa.  Charlie is so interested he and Eric ride the rest of the way to Harlan together.  Although its only the first day Turkewitz remarks that he agrees with Lance Armstrong . . . RAGBRAI is a hell of lot more fun than his beloved New York City Marathon.

As he pulls into Harlan, Charlie finds himself a little short on cash and heads off to find an ATM.  There he sees John Crenshaw who starts telling him about the biggest scams banks are pulling off everyday. Charlie just shakes his head in agreement as he pays the $2.00 charge to get the money out of the ATM.  After a little angel hair pasta its time to hit the sleeping bag.  There is a big week ahead and unfortunately Charlie isn't twenty any longer.

Day 2:  Harlan to Jefferson - 83 miles

The next morning Charlie wakes up bright and early and sets off for Jefferson.  He has some clients that are buying a business nearby and that reminds him he should heed Larry Staton Jr.'s advice to know what you are getting when you buy a trademark from an existing business.

About half way to Jefferson our city boy is a little mesmerized by the miles and miles of corn.  It makes him wonder whether Farmer David will be able to pay that large patent judgment he now owes Monsanto as reported by the Patent Baristas.

In Scranton, just short of Jefferson, Charlie sees a big group of people gathered in a park off the town's main drag.  There he sees Dan Slater of the WSJ Law Blog who explains that all the hoopla is because the M & M boys have turned their attention to the RAGBRAI water slides because the Naked Cowboy drove them outta of Dodge.  The revelers love it and the log jam causes a very slow ride into Jefferson that evening.

Day 3:  Jefferson to Ames - 56 miles

It's a big day for politicians on the way to Ames, home of Iowa State University.  Barack Obama and John McCain are expected to make appearances today.  Hillary Clinton is here too and keeps talking about how the Florida and Michigan delegates must count.  Obama shrugs it off by saying even his six year old knows it wouldn't be fair to count votes where there was no campaign.  But at least Florida has made significant strides in improving its jury system according to Juries.  While Diane Levin points out voters can learn a lot from the field of negotiationEugene Volokh shares that John Mellencamp may be able to stop McCain from playing his songs after all.

All the political talk has people addressing serious issues on the road today.  Riding on a three person tandum, Leon Gettler of Sox First tells Charlie that Sarbanes-Oxley not only failed to stop the subprime meltdown, it contributed by giving investors the false confidence that they could rely on the law, and not prudence to protect their market holdingsScott Greenfield shares that Congress has a pending bill that may immunize banks from paying billions in dollars to a small Plano, Texas companyPatently-O adds that although DataTreasury is not directly mentioned in the bill it is pretty clear that Section 14 is directed primarily at the company

As Charlie rides into Ames he sees Kevin O'Keefe and  Holden Oliver of What About Clients engaged in a heated discussion about whether corporate clients really want a lawyer that blogs.  O'Keefe says yes while Oliver says no.  It then gets a little personal when O'Keefe accuses Oliver of being someone else.  Charlie blames Teri Rasmussen who started the whole thing when she said every client should want a lawyer who blawgs.

Day 4:  Ames to Tama-Toledo - 75 miles

Charlie gets ready to head off to Iowa's version of the twin cities today.  In the pancake breakfast line he meets Connie Crosby who is kind enough to introduce him to David Bilinsky.  David tells Charlie all about how there is a great need for law firms to turn their senior partners into business leadersDavid Maister overhears them and chimes in that one-firm firms are often quite successful.

After an uneventful morning Charlie witnesses an accident on today's route where someone goes to the hospital.  It looks like the rider will be okay but David Harlow of HealthBlawg warns that hospital-acquired infections are a real problem.  Iowa estate lawyer Matt Gardner says that even if the rider makes it through he should still think about the disposition of his bodily remains.

 As he enters Tama (or is it Toledo), John Phillips of the Word on Employment Law almost runs smack into a little beagle that darts in front of him.  The incident causes John to conclude that beagles should no longer be excluded from the Animal Employment Protection Act (AEPA).  John is obviously a little excited about the near miss and starts rambling about how he handled the situation a whole lot better than Roger Clemens handled the accusations from Brian McNamee.

Day 5:  Tama-Toledo to North Liberty - 82 miles

Now that we have passed the mid-way point for this year's ride, everyone is a little loosey-goosey today.  Charlie's cadence starts to pick up as the wind blows with the sweet smell of pork chops.  That could only mean that Mr. Pork Chop is nearby.  As he pulls off the roadside to visit our pork chop hero, Charlie sees that Iowa legal blogger extraordinaire Brett Trout and his band of Iowa legal bloggers are engaging Mr. Pork Chop in a battle of wills to determine who has the loudest pork chop call.  Sadly, while Trout may be Iowa's toughest attorney he is no match for Mr. Pork Chop in this arena.  Hear why:

 

After a pork chop and a short nap Charlie rides along to catch up with Michael Moore who discusses risk management in employee terminations and explains sometimes the "How" is as important as the "Why".  Pretty soon both of them come across a big party along the roadside.  A crowd is gathered around Dennis Kennedy who apparently is still celebrating his blawgiversary and birthday.  During the party Tulane Law Professor Alan Childress wonders aloud whether any Iowa legal counselors had ever been in trouble like the lawyer that got into trouble with his state bar by trying to talk his way out of a ticket for deer hunting.

Still a little full from his banana cream pie, Charlie and his new friend Charles H. Green ride along at an easy pace discussing that as more and more banks and consumers walk away from loans--and contracts gone bad, we are reminded that legally binding contracts are often only as strong as the morality of those signing them.

That evening after dinner there is lots of entertainment in North Liberty.  At a concert Cathy Gellis proclaims, "I need a husband!"  The revelation causes Jon Hyman to explain what happens when office romances go bad.  But Cynthia Shapiro, who received her RAGBRAI pass from George's Employment Blawg, says you might be able to have that office romance if you know a few secrets.  When Jennifer Jaskolka-Brown overhears them she warns them that email has made it much easier to collect damaging evidence in divorce cases.

Day 6:  North Liberty to Tipton - 62 miles

Charlie decides to join the Lance Armstrong peloton this morning for some fun.  As you might expect with Armstrong the ride is a little faster paced today.  There are several others brave enough to join the pack this morning:

 

Day 7: Tipton to LeClaire - 55 miles

The last day!  On his ride to LeClaire, Charlie meets up with the anonymous Editor of Blawg Review to tell him the ride has been worth it.  Together they dip their front tires into the Mississippi River where Charlie quips that normally what happens on RAGBRAI stays on RAGRBRAI, but this year what happens on RAGBRAI ends up on Blawg Review!

 * Legal Disclaimer:  This Blawg Review is a work of fiction.  Names, characters, places, events and incidents either are the product of the author's imagination or are used fictitiously.  Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.  My dear friend and fellow Iowa legal blogger Brett Trout takes the helm next week.  We wish him well as he tries to best the excellence of his previous effort on Blawg Review #106.

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 Flickr Photo Creditsjohnedwards2008, wade, blmurch, MNgilen, IaRuth, wade and artandscience

Iowa Non-Compete May Be Enforceable Even if You're Fired

Charlie Longbrief picked up the phone on a Friday afternoon.  He was accustomed to these late Friday afternoon calls.   People with problems always seemed to call at this time because they need peace of mind over the weekend.  It was his friend Joe Smith who worked as sales manager for Shake, Rattle & Roll, Inc. a local baby toy manufacturer. 

"Charlie I need help.  I have just been fired from my job," said Joe.

"Tell me about it," replied Charlie.

"Well, I didn't like working there anyway and I was looking for another job.  I think I found one with a competitor but unfortunately my employer caught wind of it and they fired me.  I have a non-compete but of course they can't enforce that against me because I was fired, right?" asked Joe.

"Unfortunately Joe that is not always the case.  In Iowa, non-competes may be enforced even in situations where the employee has been fired.  It may be a factor to consider but the fact you were fired rather than quit does not necessarily invalidate the non-compete," Charlie said.

Joe shot back, "But I was told by my cousin Frank that works down at the loading dock that one of his friends said they couldn't uphold a non-compete against me if I was fired."

"I know that is a common belief but I am sorry to inform you that is not always the case.  It always depends on the circumstances of the particular case.  Every case is different but just because you are fired does not mean they can't enforce the non-compete," said Charlie with a little more emphasis this time.   

Charlie continued, "As you know I mostly represent businesses and I recently wrote an article on Protecting Your Iowa Business With a Non-Compete.  Why don't you take a look at it.   It outlines some of the key issues in determining whether a non-compete is valid in Iowa.  From an employee perspective it is never a bad idea to look at the situation from the employer's perspective and vise versa.  Read the article and then let's talk."

"Thanks, Charlie.  Not what I wanted to hear but at least I have a better idea of where I stand.  I'll give you a call back Monday," said Joe. 

Think Twice Before Deducting From Employee's Last Paycheck

Dollar_sign Charlie Longbrief, attorney at law, had just turned off his computer late on a Friday afternoon when the phone rang.  It was Pete Geek who owned a local computer consulting service.

"Charlie, I've got a problem," Pete said.

"Tell me about it," Charlie said.

"Well, I had to fire one of my sales people earlier this week.  The termination seemed to go fine but he hasn't returned his company laptop or cell phone.  I want to deduct the value of those items from his last paycheck or at least withhold his last paycheck until he brings those things back to me."  Pete responded.

"Do you have any type of written agreement with him regarding the return of the equipment?" Charlie asked.

"No, I don't," said Pete.

Charlie advised, "I know it is frustrating but Chapter 91A.5 of the Iowa Code won't allow you withhold the check or deduct the value in this situation unless you have written agreement with the employee where the equipment has been specifically assigned to the employee, and acknowledged in writing by the employee.  Also the written agreement should authorize you to deduct the value of the equipment from the last paycheck if not returned.  If you violate the law you could be forced to pay the employee's attorney's fees, liquidated damages and any court costs plus the wages you owe him.  You definitely have the right to your equipment but you can't get it that way."

"I am glad I asked.  By the way, maybe you could prepare an agreement for my employees to sign authorizing me to deduct the value of the equipment from wages if the equipment is not returned,"  Pete asked.

"You bet.  By the way, you may want to check out a blog post from Jill Pugh on 10 Things to Keep in Mind When You Fire an Employee.  It's also a good idea to review the provisions of Iowa's Wage Payment Collection Act."

"Thanks a lot, Charlie.  I am glad I called."

Photo on Flickr by cutesmallfuzzy.

* This is a hypothetical.  Be sure to seek the advice of an employment attorney for advice in your specific situation.

Employee Evaluations Are Critical to Firing Decisions

Charlie Longbrief had just turned off his computer to end his day when the phone rang.  It was John Grains.  John owns the local grain elevator in Hometown, Iowa and Charlie has been his business lawyer for several years.

"Charlie, I've got a problem,"  he said. 

"Tell me about it," Charlie said.

"Well, I need to fire Nancy in my accounting department.  She just isn't getting the job done.  She is late for work.  She is lazy and never gets her work done on time.  Nancy makes mistakes.  She is one of the worst employees I have.  I just can't take it anymore."

"How old is she?  Is she a minority?  How long has she worked for you?", Charlie asked.

"She's 25 and white.  She has worked for us for six months but you also probably need to know that she is eight months pregnant.  I knew she was pregnant when I hired her.   What do you think? Can I get rid of her?"

Charlie paused, leaned back in his chair and thought for a little bit.   "Have you conducted any evaluations?"

"Actually, yes.  We gave her a review after three months on the job and pointed out some very specific instances where she needed improvement consistent with her job description.  I included the dates, times and specific examples of conduct.  I suggested some ways she could improve.   I gave her a chance to respond to our comments and I told her we would review her again at the six month mark to see if she had improved.  I indicated that if she had not improved by that date I would need to let her go.  I documented the review in writing, including her responses, and asked her to sign the review, " explained John.

"Any improvement?" asked Charlie.

"Very little.  She isn't late for work as much but the work product has not improved at all.  Just last week she missed a deadline for a very important meeting. I hate to fire someone who is eight months pregnant but I don't feel like I have any choice," he said. 

Charlie advised, "Well, the fact you have conducted an effective employee evaluation and followed it up in writing is extremely helpful.  It sounds like your performance expectations are consistent with your job description.   Without the evaluation the decision to fire her could be much more difficult because of her pregnancy.  A plaintiffs' attorney could look at this suspiciously because of her pregnancy.   Why don't you send me a copy of the evaluation and her job description but my initial reaction is you likely have a reasonable basis for her termination.  The key is whether you have demonstrated legitimate business reasons for her termination."

* This is an educational hypothetical.  Please consult your employment lawyer for specific advice in your own situation.   Slight changes in factual situations may require a material variance in applicable advice.  Read our Disclaimer.