Weekly HR News - Straight time or overtime?
Daylight Savings Time Ends on Sunday, November 4, 2018
Clocks turn back Sunday, November 4 and employees on duty from 2 a.m. – 3 a.m. that day will have worked an hour longer than scheduled unless other arrangements are made (such as leave an hour early or come in an hour later). Nonexempt (hourly) employees must be paid for the extra hour of work under the Fair Labor Standards Act. They are also entitled to overtime pay for all hours in excess of 40 worked during the week, including the extra hour worked during the conversion back to standard time.
For sample policies, training or more information on this or any other personnel related matters contact Andrea Shindlebower Main or Courtney Risk Straw.
Are You Ready for Election Day?
Everyone is gearing up for Election Day on November 6th, and while you’re preparing for the return of the polls, be sure to communicate your city’s voting leave policy with employees to ensure they understand their rights as well as requirements.
Kentucky provides one of the most generous leave laws for voting in this country. KRS 118.035 states “any person entitled to a vote at any election in this state shall, if he has made application for leave prior to the day he appears before the county clerk to request an application for or to execute an absentee ballot, be entitled to absent himself from any services or employment in which he is then engaged or employed for a reasonable time, but not less than four hours on the day he appears before the clerk to request an application for or to execute an absentee ballot, during normal business hours of the office of the clerk or to cast his ballot on the day of the election between the time of opening and closing the polls. The employer may specify the hours during which an employee may absent himself.”
Follow these steps to ensure that Election Day goes smoothly in your workplace:
- Read your voting leave policy, as well as the law, and make sure it is applied equally to all employees.
- Make sure supervisors are aware of how much notice an employee is supposed to give and how much time the employee can take to vote.
- If the time to vote is unpaid make sure that is clear to any employees that request it.
- Do not retaliate against an employee who follows the policy; however, make it clear that failure to vote (which can and should be verified) during their voting leave can result in disciplinary action.
For more information on personnel policies or any other personnel-related matters, contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.
OSHA’s New Interpretation of Post-Accident Drug/Alcohol Testing
On October 11, 2018, OSHA clarified its position regarding post-incident drug testing. Previous to this clarification an employer had to show a reasonable possibility that drug, or alcohol use contributed to the accident in order to require or administer a post-accident drug or alcohol test. Now, testing post-accident would violate OSHA rules only “if the employer took action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
OSHA states that “most instances of workplace drug testing” are permissible and OSHA specifically stated all of the following drug testing as allowable:
- Random drug testing;
- Drug testing unrelated to the reporting of a work-related injury or illness, such as reasonable suspicion without an accident;
- Drug testing under a state workers’ compensation law, such as in the case of a city that is a Certified Drug Free Workplace, which permits testing when there is off-site medical attention given to a person;
- Drug testing under other federal law, such as a U.S. Department of Transportation rule, such as when there is a human fatality or disabling damage to a vehicle and the employee is given a motor vehicle citation;
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees and the employer chooses to use testing to investigate the incident. In this case, the employer should test all employees whose conduct could have contributed to the incident, not only the employees who reported injuries.
Based on this clarification, cities should consider adding policy language to their drug testing policies that allows the employer to reserve the right to test all employees whose conduct may have contributed to the incident.
For more information on this memorandum, drug testing in general, or to request drug testing training for your city contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.
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.