Pre-employment Background Checks: New FCRA Forms Must Be Used by September 21, 2018
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, criminal records and motor vehicle checks.
Pre-employment background checks must be done whenever cities are hiring any emergency personnel, such as police, fire and emergency medical employees; however, that shouldn’t be the only time that they are done. Other positions include those that have access to cash or city accounts and in these cases a criminal background check and sometimes a credit check may be in order. Positions that require the driving of city vehicles or even those who drive personal vehicles for city business should require a motor vehicle check before he or she is hired and on an annual basis after hiring. Doing these checks will not always prevent a hiring mistake, but it does show that the city is using due diligence in making hiring decisions.
Cities, as employers, must also be aware of the laws that surround background checks. These laws include those found in the Fair Credit Reporting Act (FCRA), new legislation enacted by the federal government in May of 2018, known as the Economic Growth, Regulatory Relief, and Consumer Protection Act, Title VII discrimination claims, as well as the Kentucky Civil Rights Act and Kentucky law regarding background checks performed by public agencies.
Pursuant to the FCRA, employers must obtain permission in getting 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. The new model “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018, by the Consumer Financial Protection Bureau (CFPB). Employers must begin using the new form no later than September 21, 2018, at certain times as required by the FCRA. Failure to use the correct form can expose the employer to litigation. Changes to the form incorporate the new legislation, known as the Economic Growth, Regulatory Relief, and Consumer Protection Act and include the minimum duration of initial fraud alerts, information on obtaining security freeze by consumers, as well as excluding from consumer reporting information regarding certain veteran’s medical debts and a new dispute process with respect to these specific medical debts. More information on notice requirements can be found on the Bureau of Consumer Protection website. (Note: As of the date of this article, the form, A Summary of Your Rights Under the Fair Credit Reporting Act (Summary), located on the Bureau of Consumer Protection website is not the most current form. Employers should obtain the most current Summary on CFPB newsroom page or by contacting the KLC Municipal Law and Training Department.)
Under Kentucky law, KRS Chapter 335B states that even if an applicant has been convicted of a crime, they cannot be automatically disqualified for public employment, which includes employment with a city. The only exception is when the conviction “directly relates to the position of employment sought ..." And even then, it is not an automatic disqualification, as an employer can still hire if they believe the person has been rehabilitated. Also, under Kentucky law, police, law enforcement telecommunicators, fire and emergency medical personnel cannot be hired with felony convictions (KRS 15.382, KRS 15.540 and KRS 95.440). In addition, emergency medical personnel with certain misdemeanor convictions would be disqualified from being hired in those positions, as well as police officers and law enforcement telecommunicators for convictions involving moral turpitude (KRS 311A.050, KRS 15.540 and KRS 61.300).
Violations of discrimination under state and federal law can also be a possibility when using background checks in hiring decisions. Follow the Equal Employment Opportunity Commission’s (EEOC) guidelines to be certain that you are not using convictions as a basis to refrain from hiring someone, especially regarding a person’s race or national origin. Employer’s should consider how the conviction relates to the job being sought, as well as the time that has passed since the conviction, and the applicant’s conduct and references since this conviction. For more information on avoiding EEOC violations when using criminal background checks, see the EEOC website.
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 decision not to hire 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 related matters, contact Andrea Shindlebower Main, Personnel Services Manager or Courtney Risk Straw, Personnel Services Attorney.
Updated Family Medical Leave Act Forms
The Department of Labor released updated Family Medical Leave Act (FMLA) forms over the Labor Day weekend. The only change to the forms is the new expiration date, which is August 31, 2021; however, it is important that you use the new forms from this point forward. The updated forms can be found on the Department of Labor website.
For more information on this or any other personnel related matter, contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.
The use of mobile devices in the workplace is more popular than ever before. With children going back to school, many city employees are now busier than ever outside of work.
Because of this, cities may find it necessary to enforce proper mobile phone etiquette at work and in many cases incorporate cell phone policies within the employee handbook.
Here are some tips for cell phone etiquette at work:
DO turn your ringer to vibrate or silent. Remember that you share a space with others, so keep your ringer off when bringing your mobile phone into meetings. Doing so will help keep calls or notifications from being disruptive. If you must keep your ringer on, select a discreet, professional ringtone and keep it on the quietest setting possible.
DO remember to include an email signature on messages that come from your mobile phone or tablet. This is often overlooked and emails from mobile devices only have your name and the type of device the message was sent from. It’s important to include your city contact information so people can easily respond to you.
DON’T take personal calls at your desk if you share close space with co-workers. This can be distracting to those sitting near you and can make for an uncomfortable atmosphere if you’re discussing private matters.
DON’T take a call or text if you are having a face-to-face conversation with someone. Let the call go to voicemail and read your text after you finish your conversation.
DON’T talk or text and drive. If it is a call or text that you have to make, pull over to do so!
Lastly, keep in mind that electronic messages that are created, received, used, or disposed as part of city business can be considered open records and must be treated as such in regards to retention and disposal.
For sample policies or more information on this or any other personnel matter, contact Andrea Shindlebower Main, Personnel Services Specialist, with the KLC Legal Department.
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.