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Use of Cell Phones at Work
Posted on August 20, 2018 by Andrea Shindlebower Main in Behavior and Work Etiquette

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.

 

 

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ALERT!  Changes to Kentucky Labor Law Poster as of June 2018

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.

The remainder of the rules are unchanged, and a summary can be found on the KLC website.  The new mandatory poster can be obtained on the Kentucky Labor Cabinet website.

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.

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Unpaid Leave as an Accommodation under the ADA
Posted on June 18, 2018 by Andrea Shindlebower Main in ADA

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.

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The Great Flip-Flop Debate
Posted on June 1, 2018 by Courtney Risk Straw in Employee Dress Codes

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:

Appropriate

Inappropriate

Collared shirts

T-shirts

Dress slacks

Wind pants or other athletic apparel

Blouses

Tank tops

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.

Additional considerations:
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.

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Make Sure You Are Up-to-Date on Kentucky's New Tax Law

The 2018 legislative session approved changes to Kentucky’s tax code that will affect most employees.   These changes require all employers beginning no later than July 1, 2018, to begin withholding a flat income tax rate of 5% from employee earnings. 

House Bill 487, passed in the 2018 Regular Session, made various changes to Kentucky's tax codes for the calendar year. Among the updates was a switch to a flat 5 percent income tax rate. Employers are responsible for changing their payroll system to account for the new withholding amount that is retroactive for the year.

The Kentucky Department of Revenue has updated its 2018 withholding tables.

You can access the new tax tables and the new 2018 Kentucky withholding formula here.

You can get answers to questions about the new tax law at taxanswers.ky.gov.

Download a sample memo to use with employees. 

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Are Your Employees Classified Correctly?  Don’t Know? Read on …

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":

  1. Be paid over a minimum salary as outlined in 5;  
  2. Be paid on a salary basis as opposed to an hourly basis; and
  3. 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:

  1. Executive exemption test
  2. Administrative exemption test
  3. Professional exemption test
  4. Computer exemption test
  5. 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.

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