Administrative LawState Capitol

Question: I have been contacted by my licensing board for an unknown reason. Do I need to employ legal representation at this stage?

Answer: Absolutely. Ultimately, many license suspensions are based mainly on oral or written responses to questions furnished by licensees in the early stages of an investigation. Many licensees believe that they can convince the investigators and the board that there are no problems without the help of legal representation.

Question: Is my personal attorney able to handle the procedures associated with licensure defense, or are there attorneys who handle these cases on a regular basis?

Answer: If your personal attorney has not handled administrative licensing board hearings in the past, he or she should contact an attorney who has handled at least two full board hearings before you, or your attorney, have any discussions with the licensing board representatives.

Question: I have determined that I am under investigation by my licensing board. What should I expect from this and what steps should I be proactively taking?

Answer: As soon as you find out that any activity is occurring regarding your license your attorney must contact and interview everyone who could possibly be involved with the matter or situation which is the subject of the investigation, in advance of any formal action by the licensing board. After organizing documentation and lining up anyone who has knowledge of the facts, your attorney can then contact the Board to assist in concluding the investigation with minimal exposure to you. Beware, however, that just because the licensing board’s investigators have not contacted a potential witness or discovered possible evidence does not mean that they are not going to pursue the case. Many cases lie dormant for considerable periods of time before picking up speed.

Question: My licensing board has offered me a proposed settlement, and my attorney has advised me to accept it because it’s the best opportunity that I have to keep my license. Is this true?

Answer: Not necessarily. You need to know what the law states regarding your involvement with the board and whether the rules allow the proposed settlement, as it applies to your circumstances. You need to know what agencies, insurance companies, and databases will be notified of the settlement and how it will reflect upon your licensure and your job in the future. Occasionally, the settlement is harsher than the results of a full-scale evidentiary hearing.

Question: I am preparing my initial or renewal license application. I was convicted of a minor misdemeanor several months ago. Does this need to be disclosed?

Answer: The only appropriate disclosure is over-disclosure. Non-disclosure allegations are always publicly labeled as fraudulent. An attorney should be consulted to interpret the questions and answers, to be certain the answers do not violate any rules. Errors in filling out initial applications or re-credentialing forms are never tolerated by licensing boards.

Question: How proactive do I need to be about my recent criminal conviction, in terms of dealing with my licensing board?

Answer: Each agency has its own published administrative rules. If immediate disclosure of the offense is required by those administrative rules, then disclosure must occur immediately after consulting with an attorney. Hesitating to act regarding disclosure often results in serious complications. There is no room for argument regarding whether the offense affects your professional responsibilities. That is to be determined by the board, not you.

Question: I received notice of a hearing regarding my licensure and was previously unaware of any problems. What should I do?

Answer: Immediately retain an experienced attorney with administrative hearing experience. Your attorney can request a continuance of the hearing date and gain time to prepare a defense of the allegations. Your attorney can request copies of all of the board’s investigative files and the complaint that prompted the investigation.

Question: Some of my competitors have reported me to my licensing board under false pretenses. Can they do this? Won’t this just go away, because the allegations are not true?

Answer: Complaints made by competitors, while in reality are unethical, are serious problems, because boards cannot know which complaints are substantive and which are not. The boards will conduct a complete investigation and make a final determination, which often is a public record. Even if the initial complaint is not true, the investigation can lead to discovery of other possible professional violations. Each board inquiry should be treated the same, regardless of how the complaint was raised.

Question: Can I sue my licensing board and the state for making me defend myself, if the accusations are false?

Answer: Not likely. There has never been a successful suit for damages against a state licensing agency in Iowa. There are multiple levels of immunity for licensing boards, and the assistant attorneys general who prosecute the cases. That is not to say that it is impossible to proceed with a civil lawsuit, but, even with appropriate proof and evidence, it is still extremely difficult and costly. The courts are reluctant to limit the ability and authority of each licensing board to carry out its duty to the general public.

Question: How often do licensing boards just dismiss charges without detriment to a person’s license?

Answer: Boards close numerous complaint files in the investigative stage without any action at all. However, once formal charges have been filed, the cases are rarely dismissed without a full hearing and determination. Legal representation at the earliest stage increases the chances that a file can be closed without disciplinary action against a licensee.

Question: An investigator for my licensing board approached me with subpoenas for information. Do I have to give it to the board?

Answer: Yes. Every licensee agrees, by statute, to comply with any reasonable request for information, documents, and materials deemed necessary by investigators to conduct an investigation.

Question: I have been told in confidence that an investigator for my licensing board has been asking questions about me. What can I do about this?

Answer: Have an experienced attorney contact the board and its investigator in an attempt to determine what is prompting the investigation. Technically, the board does not have to reveal any information until the filing of a formal complaint; however, some boards will occasionally work with a licensee’s attorney prior to that point. Only an attorney will be able to handle these stages of the investigation for you. In some cases the attorney can arrange for an informal appearance before the board to discuss the legal issues and possibly avoid a public complaint being filed

Question: Are the costs associated with defending my licensure worth it, considering that I don’t believe the board will ever leave me alone, now that I’ve been in trouble?

Answer: Yes. A strong defense may limit the exposure to any discipline you may face. Many professionals have insurance policies that provide coverage for at least a portion of the costs associated with the case, and you may as well take advantage of that coverage. Too often, professionals will choose to simply retire, instead of facing the uphill battle and stress associated with defending against claimed violations. This is an unnecessary and unrealistic choice. You can enjoy a continued and successful career, as long as you stay focused and work diligently with your attorney to manage your case.

Question: I had a hearing with a committee of a board and lost, now what?

Answer: You will, or already have, received a “proposed ruling”. It can be appealed to the full board but there are different rules for each board regarding the details of the appeal process. If after an appeal to the full board you are still not satisfied with the results you may have legal grounds for an appeal to District Court. Those decisions are only made after careful analysis of the basis for the initial “proposed ruling” and the relevant fact and law issues. Recent law changes by the legislature have limited the appeal rights for some of the boards. The administrative rules that empower each agency are continuously reviewed by each board.

Employment Law

Question: What is employment-at-will?

Answer: This is the assumed contractual relationship between all employers and employees, if there is nothing more to describe the relationship, such as a written contract providing specific terms of employment. Employment-at-will became the presumed employment relationship in Iowa and most states by the end of the 19th century, in that it emphasizes efficiency in the workforce, as opposed to individual fairness on a case-by-case basis. At its most basic definition, employment-at-will means that you can quit your job at any time, with or without giving a reason, good or bad, and your employer cannot compel you to stay. On the other hand, it means that your employer can fire you at any time, with tr without giving a reason, good or bad.

Question: Are there exceptions to employment-at-will?

Answer: Yes, you and your employer are free to enter into a specific contract that applies to your job. These are not common, but a classic example would be a performance contract for an entertainer or an athlete that promises specific payment, for specific services, for a specific period of time. A more common example is non-specific contracts that apply to large groups of employees. These contracts specify terms and conditions, as well as how and when an employee can be disciplined or terminated by an employer. Non-unionized employees sometimes have contractual employment rights upon the attainment of some level of service, such as merit-based governmental employment or academic tenure.

Question: If people are employed-at-will, do they still have legal rights in regard to their jobs?

Answer: Though limited to specific exceptions, the clear answer is "yes." Since the mid-1960s, federal and state legislatures have passed laws preventing employment decisions that are influenced by illegal discrimination. The types of discrimination in the workplace that are not acceptable include decisions based on race, gender, religion, national origin, age, or disability. Recent legislation has also prohibited acts against qualified employees on the basis of their illness, or a family member's illness, that requires absence from employment for a limited period of time. In addition to discrimination on the basis of a characteristic, rights have also been created by the courts to protect employees who have other legal rights and act upon them in the workplace. For example, if you are injured at work and required to pursue worker's compensation benefits, your employer cannot terminate you. Nor can an employer terminate you for pursuing other rights, such as voting or serving on a jury.

Question: What is sexual harassment?

Answer: In addition to being prevented from making employment decisions on the basis of gender, it is also illegal for an employer to create, or allow to exist, a day-to-day work environment that is hostile or degrading towards a specific gender, usually female. The existence of such an environment is determined on a case-by-case basis, but usually requires more than a single or occasional remark, joke, or offensive action. An employer is under an obligation to make reasonable attempts to prevent degrading sexual actions or statements and to also encourage people to complain about such occurrences without the fear of retaliation. Gender is the most common form of sexual harassment, but it is not the only basis for a hostile environment. Another kind of illegal harassment that is much more clearly established and does not necessarily require several occurrences is when an employer makes sexual advances in exchange for promotion, job retention, or other workplace favors.

Question: Can an employer monitor an employee's emails?

Answer: If you have an email account that is provided by your employer, the answer is almost always "yes," even to the extent of the contents. An employer-provided email account does not personally belong to you, but to your employer, and your employer has an interest in its own property. If you maintain and pay for your own email account, you have a privacy right to the contents of that email, but not a right to use such email during business hours.

 
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