Solar Eclipse 2017 – Liability Issues That Could Leave Employers in the Dark
Cities have been calling with concerns as to their liability for any injuries occurring in the workplace that could be attributed to the solar eclipse on August 21st. As we all have heard by now, it is not safe to look at the sun during the solar eclipse until the sun is 100 percent obscured by the moon. Because of this danger, anyone who is going to view the eclipse should either view the occurrence indirectly by using a pinhole projection method or with approved solar filter glasses, as ordinary sunglasses will not filter out the dangerous rays.
What does this mean for employers? First, there is never any 100 percent effective approach to keep a lawsuit at bay; however, there are some things that can be done to keep employees safe and employers in a better position to defend legal claims. Second, there will be many employee issues that will come up related to the event. The best thing that you can do now is be prepared. Below are some things to consider.
Some cities are planning viewing parties for employees. Keep in mind if you do this it is possible that an employer could be subject to a workers’ compensation claim for any injury that is sustained during this work-related event. Because of this, safety should be a priority and cities should provide employees with approved eclipse glasses or pinhole supplies. Since cities are public agencies, not all employees will be able to partake in festivities, so employers need to make clear what essential services must be covered and by whom.
If you aren’t planning a viewing party or sanctioning employees to view the eclipse, what other concerns should you have? The fact that this is something that most people will want to witness could lead to an increase in absenteeism and, at the very least, lack of productivity.
Many school systems in Kentucky are closing for safety reasons, and that can leave parents in a bind for child care. In some cases, employees may want to stay home and view this astronomical event with their children. However, as public employers we have to provide essential city services. With many of our cities being in the center of this big event, the number of people in our cities will increase and with it the need for city employees being at work will increase as well.
So what does a city do when multiple requests come in for the same day? Review your leave policies as well as what the city’s normal practice for multiple leave requests. Do they state, or do you normally allow, that requests are based on seniority or on which employee turns the request in first? City departments, especially those that provide essential services, need to be certain that they have enough coverage. That may require turning down some of these requests. Make sure that you have a plan in place and explain to employees ahead of time the importance of their role in the city and the importance of their presence at work.
In addition to planned absences, what do you do about those unplanned absences that occur the day of the event? Again, review your policies and recent practices and make clear to employees what is expected of them and what the consequences are for not following policies or abusing leave time. An email or memo to all employees letting them know this information ahead of the event can be enough to curtail abuse.
Even for those employees who come to work that day, many will want to go outside at some point during the three-hour event to witness it. Be prepared for this to happen and make sure that it is understood that someone has to be available to cover the phones and any other required stations, especially those in essential services such as dispatch, police and fire. The theme for the day? Have a plan in place!
Another possible issue that may arise is in regards to religious accommodations. An employee’s request not to work on August 21 to attend religious services or to engage in a religious observation during work could be protected by Title VII. Remind supervisors that any request that is received must be considered unless it presents undue hardship on the employer. These situations should be discussed with your city attorney, especially if you are considering denial.
Many city employees that will be working that day will have to drive or work outdoors during the eclipse. Whether your city is in the path of the total or partial eclipse, you must provide direction for how those employees are to handle the sudden darkness and other conditions resulting from the eclipse.
No matter what your plan is, at the very least educate employees on how to avoid damage to their eyesight. To do this, NASA has created a safety sheet that can be printed from their website and given to employees. This is a simple tool that can keep your employees safe and keep your liability concerns at a minimum.
For questions about this or any other personnel matters contact personnel services specialist, Andrea Shindlebower Main.
Weekly HR News – Drug Testing
Drug Testing For Public Agencies
We expect employees to come to work free of their personal issues. However, a personal struggle as all-consuming as addiction will inevitably spill into the professional realm. That is why it is crucial for employees and supervisors alike to understand how addiction manifests itself in the workplace and to have a thorough knowledge of related city personnel policies.
Personnel policies should begin by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity.
When writing or amending policies, cities also need to keep in mind that the laws regarding governmental drug testing policies, unlike for the private sector, place restrictions on who, what, when and how the testing can done. Governmental employers must have a compelling justification for testing or risk violation of the employee’s Fourth Amendment rights.
Under a city policy, employees can be tested based on reasonable suspicion, post-accident and pre-employment (only after a conditional offer of employment). Random testing, unlike in the private sector, is reserved for those employees who are considered safety-sensitive. These employees have safety-sensitive responsibilities to citizens within the areas of public safety. Examples of such employees include:
- Police officers
- Emergency dispatchers
- Heavy equipment operators
- Employees with commercial driver’s license (CDL)
- Mechanics that work on CDL-regulated vehicles
- Gas pipeline workers
- Personnel who drive vehicles carrying senior citizens, handicapped peopled or children
Before doing any type of testing, a written policy must be in place and a copy of the policy should be given to all employees at least 60-90 days in advance of the start of testing. This allows any employee with a drug or alcohol addiction to seek rehabilitation. And be certain that all employees sign a receipt of acknowledgement that they have received, understood and agree to abide by the policy.
Your policy must explain how, when, where and for what reason testing may occur and outline the steps that will be taken to ensure employee confidentiality. The records should be stored and locked separately from general employment records with access to these records only on a strict need-to-know basis. It should also explain the consequences of an employee’s refusal to test, interference in the testing process, or a positive test.
In addition, it is important that the policy address federally regulated employees (such as CDL) separately. One of the main differences is the requirement that federally regulated employees are randomly tested in their own separate pool. The regulations also require that a Medical Review Officer (MRO) review the drug tests before they are given back to the employer. Even though this is only a requirement for federally regulated employees, it is recommended that an MRO be used for all the city’s drug testing, since they are formally trained and certified.
Lastly, the policy should also set out guidelines for mandatory training for both supervisors and employees. The ability to know the ins and outs of testing can only be ascertained through sufficient training. Remember that lack of knowledge can lead to liability issues that cities cannot afford.
A drug and alcohol policy is much more than drug-testing in the workplace. An effective policy is a legally compliant policy that provides employee awareness and education, supervisor training and a plan of action. Taken together, it conveys a full, comprehensive program designed specifically to meet the needs of your city and that will set expectations for current and future employees.
For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist and be sure to attend the Drug Testing webinar on September 8th.
Weekly HR News - Hiring Practices
The Importance of Up-to-Date Job Descriptions
Even though there are no state or federal requirements to have job descriptions, there are many legal issues that can be avoided if they are current and properly drafted. Some of those legal issues include requests for Americans with Disabilities Act (ADA) accommodations and employee classification.
Under state and federal ADA laws there are requirements for reasonable accommodations for qualified individuals with disabilities. Job descriptions serve an important purpose when it comes to determining what the essential functions of the job are, and they can be used by physicians to determine whether or not the employee can perform the required job duties. If it is determined that the employee or applicant cannot perform the essential functions, the employer must decide whether or not a reasonable accommodation can be provided. If a complaint is filed against the employer based on the denial of an accommodation, the courts will review the job description, in addition to other pertinent information, to determine whether or not the employer was correct in the denial.
In addition to ADA accommodations, job descriptions can assist in determining whether a candidate or employee should be exempt or nonexempt pursuant to Kentucky and federal law. A job description must accurately reflect the duties of the position as well as include the applicable exemptions that show that the employee in the position qualifies as being exempt from overtime. For more information on the requirements for exemptions see the Exempt v. Nonexempt blog post. As with ADA complaints, if an employee makes a complaint based on misclassification, one of the items that will be reviewed is his or her job description.
On the practical side, employers should use job descriptions when creating advertisements for hiring new employees. Having a current job description will make it easier to craft the job advertisement, serve as a platform for interview questions, and be an educational tool for interested candidates.
For employees that are already on the job, this document is a great communications tool on the required aspects of their position. The descriptions can include performance standards and work rules, such as specific safety requirements that apply to that particular job. Supervisors can also use them for backup of any disciplinary action that results from not meeting expectations that are set out in the description, especially if the employee has signed the document.
Lastly, many employee positions require specific licenses, certifications, degrees and annual trainings that should be included within the description. This is also a great place to reiterate that the position requires a valid driver’s license; is subject to an annual motor vehicle check, physical exam and/or drug testing as set out in your policies; or that those in the position are considered essential in the event of inclement weather or natural disaster. Make sure to also include other important internal qualifications such as attendance requirements and being able to work well on a team.
When up-to-date, the job description can assist the employer in creating a more productive, legally compliant workplace. But when allowed to become out-of-date, or when poorly drafted, the job description can be a major liability for the employer.
For questions on creation of job descriptions, sample job descriptions or other personnel matters, contact, KLC Personnel Services Specialist, Andrea Shindlebower Main.
Weekly HR News - Hiring
Police Officer Reimbursement Contracts – Changes Effective June 29, 2017
When hiring police officers, many cities enter into contracts that require reimbursement for the initial hiring costs if the officer leaves to go to another law enforcement agency. Initial hiring costs include, but are not limited to, the application process, training costs, equipment costs, salary and fringe benefits. The time frame allowed for reimbursement is from the officer’s initial application until his or her graduation from the Department of Criminal Justice Training (DOCJT). In addition, these reimbursement costs are required to be made by the law enforcement agency that hires the police officer away from the initial agency.
Prior to the 2017 legislation session, the public agency could only receive a prorated amount based upon the percentage of time that the officer completed during his or her employment contract and reduced by the cost of the training provided by the DOCJT for the officer. HB 337 amended KRS 70.290 by removing the prorated requirement. The statute now states that the amount of reimbursement authorized “shall not be prorated, and shall be for the full amount” of the initial hiring costs from the officer’s initial application until their graduation from DOCJT. This change is effective for any new hires after June 29, 2017.
For questions on this or a sample contract, contact KLC Personnel Services Specialist Andrea Shindlebower Main.
Weekly HR News - Hiring Practices
Before Performing Preemployment Background Checks Read This!
When hiring a new employee the city may need to request additional information in order to make an informed decision. Some of that information may include requesting credit reports and criminal records checks. And in some cases, as with police officers, background checks are a requirement before hiring.
Under the Fair Credit Reporting Act, employers must obtain permission to get a credit or criminal background check. In addition, if any of the information is used in the decision-making process, the city is required to notify the applicant to give them the opportunity to dispute any incorrect information. More information on notice requirements can be found on the Bureau of Consumer Protection website at http://www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know.
In addition, KRS 335B.020, which was amended by SB 120 in the 2017 legislative session, states that even if an applicant has been convicted of a crime, he or she cannot be automatically disqualified for public employment, which includes employment with a city. The only exception is when the crime “directly relates to the position of employment sought ...” And even if it directly relates to the position, an employer can still hire if they believe the person has been rehabilitated. To consider whether or not an individual has been rehabilitated, the employer should consider the nature and seriousness of the crime for which the individual was convicted and how much time has passed since the conviction; how the crime may relate to the position of public employment; and the relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position.
Equal Employment Opportunity Commission (EEOC) violations can also be a possibility when using background checks in hiring decisions. Follow EEOC guidelines to be certain that you are not using convictions as a basis to refrain from hiring someone, especially in regards to a person’s race or national origin. For more information on avoiding EEOC violations when using criminal background checks, see the EEOC website at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Keep in mind that any information used to make a hiring decision must be related to the job and the job description. When you must make a hiring decision based on information from any type of background check, make sure that you work with your city attorney to be certain you are making the right decision for all involved.
For questions on hiring or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.
Weekly HR News - Hiring Practices
Hiring, Employee Retention, Wage and Hour Issues… Oh My!
Hiring and retaining the best employees can be one of the most important tasks that a city can undertake. Employees can be the heart and soul of a successful city. Therefore, it is essential that cities hire the best employees and work to retain them.
Another reason to do this right the first time has to do with the costs of hiring and training new employees, not to mention the time that this takes. The costs to publish an advertisement, background checks, drug tests, as well as the time it takes to sort through applications and the interview process can be detrimental to the city budget. In addition, there are the costs associated with and time it takes to train a new employee and it can also place added pressure on the remaining employees that must take on additional tasks. To avoid these issues make sure you make every effort to hire right the first time.
Some of the ways to hire the best employees start with a current and accurate job description. When creating the advertisement for the position, having a current job description is crucial. The advertisement should be based on the essential functions of the job. What must the potential employee have in order to qualify to do this position? By identifying these requirements prospective candidates know whether or not they have the skills, education, training and background to do the job, and it enables the city to weed out those who do not.
The next step is the application and the interview process. Be certain that both the employment application and the city interview process do not contain any questions that may violate state, federal or local law. Don’t ask any questions that may be related to race, color, religion, national origin, gender, disability, age or their status as a smoker or nonsmoker (only in Kentucky).
Interview questions should be prepared in advance and should be based entirely on the ability of the candidate to do the job for which they are applying. Make sure that the interviewers know what questions are completely off limits.
Once the interviews are complete, have a process in place to guide the decision makers to identify the best potential employee. Also, be aware of any required preemployment testing or background checks that the city may have to do once an offer is made. Ascertain ahead of time what can and cannot be done as well as what information should be gathered from the testing and used in the final decisions.
After the employee has been hired, have an onboarding process that assimilates the employee into the city work environment. Don’t give him or her a stack of papers and leave them alone. Make this an interactive process where they are immediately made to feel like part of a team. Make sure that the new employee understands the personnel policies, the city ethics ordinance, and how the city’s form of government works.
One of the most important things that a city can do to retain good employees is to make sure that anyone in a supervisory position has management skills training. Do they know their roles and responsibilities? Do they have effective communication skills? Do they know how to effectively delegate job assignments? Can they provide effective performance reviews? This information is crucial to a successful supervisor and for happy employees.
Other important issues to consider are wage and hour laws and the misclassification of employees. What is required in regards to meal and rest breaks? What is considered a full-time employee? How do you determine if the employee is entitled to overtime? What about compensatory time? Are you ready for the new overtime laws? What is considered the city’s workweek? Do we have to pay for travel time? (As well as hundreds of other laws!) Failing to follow the state and federal laws, as well as the city policy, or the misclassification of city employees can cost the city in back wages, court fees, fines and penalties. Knowing what is required of you as a city official is your responsibility.
All of these things combined put your city in the best possible position to hire and retain the best employees and to limit your liability exposure. Being proactive on the front end will make your job as a city official a little easier, as the best employees will have to be disciplined less and the city can avoid hiring for the same positions over and over.
For questions, or customized supervisor training, on this or any other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist.