ALERT! Changes to Kentucky Labor Law Poster as of June 2018
The updates to the Kentucky Child Labor Law include changes to the hours that can be worked with parental permission. Minors who are 16 and 17 years old, may work up to 32.5 hours in a week when school is in session, and a total of 6.5 hours in any one school day, but only with written parental permission. In addition, minors 16 and 17 years old who have written parental permission may not work before 6:00 a.m. on any day, and after 11:00 p.m. preceding a school day, and on non-school days they may not work after 1:00 a.m.
In addition, the Kentucky Wage Discrimination Because of Sex poster was updated effective this month with technical changes and includes changes to the phone and fax number. The newest poster can also be found on the Kentucky Labor Cabinet website.
For a list of all current posters, check out the KLC website. For more information on this subject or any other personnel-related matter, contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.
What can an employer that is subject to the Americans with Disabilities Act (ADA) do when an employee has been injured on or off the job, has used all of his or her paid leave time, and has exhausted the entire 12 weeks provided by FMLA? At that point, employers need to be aware that they must engage the employee in an "interactive process” to determine whether or not unpaid leave will be needed as an accommodation.
According to the Equal Employment Opportunity Commission (EEOC), these discussions should focus on:
- The specific reason(s) the employee needs leave (e.g., surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, doctor visits or physical therapy);
- Whether the leave will be a block of time (e.g., three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
- When the need for leave will end.
Once all of the information has been gathered the employer will consider the information and whether or not the leave would cause an undue hardship on the employer. If the circumstance will be an undue hardship on the employer, the employer does not have to grant the leave. The EEOC states that determination of whether providing leave would result in undue hardship may involve consideration of the following:
- The amount and/or length of leave required (e.g., four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
- The frequency of the leave (e.g., three days per week, three days per month, every Thursday);
- Whether there is any flexibility with respect to the days on which leave is taken (e.g., whether treatment normally provided on a Monday could be provided on some other day during the week);
- Whether the need for intermittent leave on specific dates is predictable or unpredictable (e.g., the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
- The impact of the employee's absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner (e.g., only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
- The impact on the employer's operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.
Employers also need to be aware that although they are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to provide unpaid leave beyond this amount as a reasonable accommodation to employees who require it because of a disability.
For more information on this subject read the EEOC’s guidance on granting leave as an accommodation or contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.
The Great Flip-Flop Debate
Summer is here and the familiar sound of “flip-flop” can be heard in offices across the Commonwealth. What does your dress code policy say about flip-flops? Does your policy prohibit certain items, like flip flops, but employees are allowed to wear them anyway? Does your policy provide enough specifics to guide supervisors and employees in determining what is appropriate? For example, while many dress code policies categorize “flip-flops” as inappropriate footwear, there is a consistent debate over what an inappropriate flip-flop is versus an appropriate sandal or open toe shoe.
Cities can prevent this debate, and others, by adopting a dress code with clear guidelines that match its practice. Questions surrounding summer attire provide cities an opportunity to take a closer look at their policies. Every city has unique demands and expectations that dictate what is and is not appropriate dress. The key is for the dress code policy to thoughtfully match these expectations. Some questions to consider when reviewing the dress code policy include:
Does your policy match your practice?
Cities often have dress code policies that have not been reviewed in recent years. Societal changes have made more casual work attire appropriate in some instances. Additionally, a change in leadership often ushers in a different work environment and, thus, a different standard of dress. Maybe jeans were previously prohibited but now are in line with appropriate attire. A good dress code policy is one that provides helpful guidance to what is appropriate and inappropriate in practice. Leaders should routinely review the dress code to ensure it mirrors expectations and practices.
Does the dress code provide specific guidance to employees and supervisors?
Simply stating a dress code is “business casual”, for example, is not enough. Without specific examples, employees are left to guess what attire would meet the criteria. Additionally, supervisors are left to make judgment calls which creates a risk inconsistent enforcement. Providing a list of specific examples of what is appropriate and inappropriate takes the guess work out of compliance. Our KLC model policy includes some of the following examples:
Wind pants or other athletic apparel
Are examples gender neutral?
When providing specific examples, cities should not provide gender specific requirements. This occurs when a dress code sets forth separate expectations for men and for women. Cities do not want to create different standards for men and women. Instead, a single list should be provided without reference to gender when listing clothing items. For example, appropriate clothing could include midthigh-length shorts, which would apply to men and women. Additionally, the KLC model policy addresses facial hair but does so without utilizing gender specific words. Removing gender from the dress code assists supervisors in gender neutral enforcement.
Are any appropriate exceptions acknowledged?
Some exceptions to the dress code may be appropriate. For example, a specific department may have a different dress code based on their job requirements. If a department will consistently have different rules, be sure to acknowledge that in the dress code. Depending on the specifics, it might make sense to simply reference the department supervisor’s guidelines. In other instances, it may be more appropriate to include the different dress code in the overall policy.
Are hygiene guidelines included?
This is always a difficult subject to address but is more manageable when a guideline is in place. Our KLC model dress code policy states, “For all employees, professional appearance also means that the city expects you to maintain good hygiene and grooming while working.” Cities can also consider adding language that offensive odors, fragrances or otherwise, are not permitted. When supervisors must address a body odor, unclean appearance, or other hygiene issue with an employee, it is helpful to be able to refer to the policy. It also sets the expectation for employees that good hygiene is a personnel issue and is important for everyone to comply to have a positive working environment.
Are consequences for dress code infractions specific enough to provide consistency?
The dress code policy should outline a standard process for addressing dress code violations. Typically, an employee will be asked to leave work to remedy the infraction and will not be compensated for the time needed to do so. The process should be clearly outlined, including whether the employee will need to use vacation or comp time for the time out of the office.
Are supervisors trained to consistently enforce?
A policy is only as good as the enforcement. If supervisors are inconsistent with enforcement, employees are left to guess what is and is not appropriate. Inconsistent enforcement also undercuts the policy and, if it continues long enough, leads to a policy that no longer mirrors practice. Supervisors should understand the importance of enforcement and be encouraged to propose changes to guidelines that are incompatible with practice for consideration.
Do you have a signed acknowledgment of the dress code from each employee?
A signed acknowledgement of the policy should be obtained when an employee is hired and with each drafting change. Many cites incorporate the dress code policy in their personnel handbook. If so, acknowledgement of the personnel policies is sufficient.
Consider adopting designated casual days or a summer dress code, if appropriate for your city. This can provide a morale boost among employees. It also can help ensure continued compliance with the dress code, preventing potential lax enforcement in the summer months from turning in to inconsistent enforcement year-round.
KLC offers member cities the Personnel Policy Review Program. If you would like assistance in reviewing your city’s dress code policy, or any personnel policy, please contact Andrea Shindlebower Main or Courtney Risk Straw for more information.
HR News for Cities
Are Your Employees Classified Correctly? Don’t Know? Read on …
In April 2018, the Kentucky Labor Cabinet recouped $101,424.73 in unpaid wages for Kentucky workers. Violations by employers included unpaid overtime, including overtime based on misclassification, withheld final paychecks and unpaid breaks. One of the ways employers can prevent these costly mistakes is to be certain that they are classifying their employees correctly.
The Fair Labor Standards Act (FLSA), as well as Kentucky Revise Statute (KRS) 337.275, requires cities to pay their employees at least the federal minimum wage, which is currently $7.25 an hour. Also under federal and state law, nonexempt employees are also required to be paid overtime pay for all hours worked over 40 in a workweek. The biggest FLSA mistake that cities make is classifying employees that are nonexempt as exempt from overtime. Keep in mind that it is much better to review compliance before the Department of Labor comes in to review for you.
1. What is the Fair Labor Standards Act (FLSA)?
The Fair Labor Standards Act is a federal law that was established by the U.S. Congress in 1938 and has been amended several times since then, most recently this year. The FLSA defines the federal minimum wage, employee time recordkeeping requirements, and jobs required to receive overtime compensation after 40 hours have been worked in a workweek.
2. What does the term "nonexempt" mean?
Employees classified as nonexempt are covered by the overtime provisions of the FLSA and must record each hour worked on the time record. If the employee works more than 40 hours in one workweek, the employee is paid time and one-half, whether in pay or in accrual of compensatory time. Almost all city employees will fall into this category.
3. What does the term "exempt" mean?
Employees classified as exempt are not covered by the overtime provisions of the FLSA and are paid an agreed amount for the whole job, regardless of the amount of time or effort required to complete the work. In most cases, exempt employees do not record hours of work on the time record.
4. What are the criteria that enable employees to be exempt from the FLSA overtime provisions?
To be classified as exempt, an employee must meet all of the standards in the following "tests":
- Be paid over a minimum salary as outlined in 5;
- Be paid on a salary basis as opposed to an hourly basis; and
- Perform certain duties as outlined in one of the duties tests as outlined in 7.
5. What is the salary level test?
Currently, the FLSA salary level test requires that an employee's salary must be at least $455 a week, or $23,660 annually in order to be considered exempt from the overtime provisions. An employee with a salary less than $455 a week must be nonexempt. Part-time employees may be nonexempt even though their annualized salary is well over $455 a week.
6. What does being paid a salary mean in terms of the FLSA?
Under normal circumstances, employees paid a salary are paid a predetermined amount each week regardless of quantity or quality of work or hours worked.
7. What criteria are used to determine if employees over the wage threshold are exempt from overtime?
To be exempt, an employee must qualify under one or more of the following tests:
- Executive exemption test
- Administrative exemption test
- Professional exemption test
- Computer exemption test
- Highly compensated employee exemption test
Each duties test has specific requirements that must be met for an employee to be exempt. For example, the executive exemption requires that an employee: (a) supervise two or more full-time employees, (b) have authority to hire and fire, or meaningfully recommend hiring and firing, and (c) manage a recognized department. Additional information on each of the exemption tests is available on the Department of Labor website at http://www.dol.gov/elaws/esa/flsa/overtime/menu.htm or Chapter 11 of the 2017 KLC City Officials Legal Handbook.
8. What is the definition of overtime?
Overtime, as stated above, is time worked by a nonexempt employee that exceeds the employee's normally scheduled workweek. Overtime is time worked over 40 hours in a workweek. The workweek should be defined in your personnel policies.
9. May a nonexempt employee waive his or her rights to overtime compensation?
No. All nonexempt employees are compensated for all hours actually worked at the appropriate rate of pay.
Summer is coming! Teens will be enjoying summer vacation, and some will be looking for employment during the summer months. Before hiring teens, be sure to freshen up on the requirements because the child labor laws are detailed, and the penalties are steep if you don’t follow them!
Minimum Age Standards
The Fair Labor Standards Act (FLSA) and Kentucky law establish both hours and occupational standards for minors. In most cases the state and federal laws are very similar; however, it is important to be aware of both laws since the more restrictive requirements will apply.
In Kentucky, workers under the age of 18 are considered minors for purposes of employment. Both federal and state laws limit the occupations in which minors may be employed and the number of hours they may work. For purposes of this article, an overview of the most common requirements will be provided. To review the complete federal and state law see 803 KAR 1:100, KRS Chapter 339 and 29 CFR Part 570.
Minors under the age of 18 are prohibited from working in occupations declared hazardous by the Kentucky Commissioner of Workplace Standards or the U.S. Department of Labor, including:
- Motor vehicle driver and outside helper on a motor vehicle.
- Power-driven hoisting apparatus.
- Power-driven circular saws and band saws.
- Excavating operations.
Minors under the age of 16 are prohibited from working positions that include:
- The use of a hoisting apparatus or power-driven machinery other than office machines.
- Operating or helping on motor vehicles, although they may clean vehicles.
- Mowing (KLC Insurance Services recommends they be at least 18).
- Performing public messenger duties.
- Transporting people or property, including the operation of golf carts.
- Public utilities.
- Maintenance or repair of machinery.
- Tasks requiring the use of ladders or scaffolds.
- Cooking (except at soda fountains, lunch counters, snack bars, or cafeterias).
- Loading or unloading trucks.
Minors between the age of 14 and 16 years of age may be employed in positions that include:
- Office and clerical work, including the operation of office machines.
- Errand and delivery work by foot, bicycle and public transportation.
- Cleanup work, including the use of vacuum cleaners and floor waxers, and maintenance of grounds. They may not use power-driven mowers or cutters.
- Kitchen work and other work involved in preparing and serving food and beverages, including the operation of machines and devices used in the performance of the work, such as dishwashers, toasters, milk shake blenders and coffee grinders.
- Work in connection with cars and trucks such as car cleaning, washing and polishing. They may not perform any work involving the use of pits, racks, or lifting apparatus, or the inflation of any tire mounted on a rim equipped with a removable retaining ring.
Generally, minors under the age of 14 may not work except in an employment program sponsored by the school he or she attends. However, minors between 13 and 15 years of age may carry golf bags weighing no more than 35 pounds. Caddies under the age of 14 may caddy only 18 holes in one day. Minors who are 11 and 12 years old may not carry golf bags and are restricted to caddying only with a pull cart. No minor under 16 years of age may operate power-driven golf carts or any power-driven maintenance equipment.
Children under the age of 16 are not permitted to work during school hours nor may they work:
- More than eight hours a day or 40 hours per week during the summer months defined as June 1 through Labor Day;
- After 9:00 p.m. during the summer months;
- Three hours on school days or 18 hours a week when school is in session; or
- Before 7:00 a.m. and after 7:00 p.m. when school is in session.
However, these restrictions on hours do not apply to those minors under 16 years of age who have graduated from high school or an approved vocational school equivalent to high school, are enrolled in an approved work training or career exploration program, are otherwise not required to attend school, or school authorities have made arrangements for him or her to attend school at other than the regular hours if the employment will not interfere with the minor's schooling, health, or well-being.
Children between the ages of 16 and 17 are not permitted to work:
- More than six hours per day on a school day, or eight hours per day on a non-school day during the school year. The total hours worked in a week during the school year must not exceed 30, unless he or she has gained a special exemption from both a parent and school administrator. If exempted, he or she may only work up to 40 hours per week during the school year.
- Additionally, a minor of this age may not work later than 10:30 p.m. on a school night, or 1:00 a.m. on a non-school night.
- There are no restrictions on the number of hours per day or per week a 16 or 17 year old may work during the summer months.
Meal and Rest Breaks
No minor under the age of 18 may work for more than five continuous hours without a lunch period of at least 30 minutes. Additionally, the rest period requirements for all employees will also apply to minors. Kentucky law requires a reasonable break (usually 10 minutes or more), to be provided to an employee during each four hours worked.
Notice and Other Hiring Requirements
Cities must post conspicuously, in every room where minors under the age of 18 are working, a summary of the child labor laws, a list of occupations prohibited to minors, and a statement of the hours minors are allowed to work each day. The Kentucky Office of Workplace Standards provides a downloadable version of the required poster on their website.
Minors that are hired by the city must also be treated as any other employee hired by the city. They must be paid at least the minimum wage, which is currently $7.25, and they must be paid for all hours worked. As such cities should keep records of all hours worked, as well as the time for meal breaks taken.
Cities must also complete the Form I-9 as well as Form W-4 on all newly hired minors even if they are only employed for the summer. Specific information on filling out Form I-9 for minors can be found on the United States Citizenship and Immigration Services website. Lastly, be sure to provide and review all city policies with them and any other items normally provided during the city’s new hire process.
Penalties for violation of child labor laws can be steep, including fines ranging from $100 to $1,000 per offense, plus $100 for each day the violation continues after notice. As such, knowing the law in this area before you hire is essential.
For more information on this or other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist.