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City Personnel Files Preservation, Safekeeping and Retention- PART TWO

Weekly HR News – City Personnel Files

Preservation, Safekeeping and Retention

In the second installment of city personnel files we will look at what should contained in the different files and what within those files is subject to open records. Whether your personnel files are retained electronically or in paper files, most cities have at least four or five separate employment record files for each employee, which include:

  • The main personnel file;
  • The medical/confidential file;
  • Drug testing results;
  • Payroll records; and
  • Form I-9 files.

The main personnel file will contain employee performance evaluations, training information, handbook and drug testing acknowledgements.  The following list will assist in applying the Open Records Act to information in the main personnel file:

  • Name and current address;
    • Name – subject to open records
    • Home address – not subject to open records
  • Completed and signed Employment Application Form;
    • A public employee's name as well as portions of the employee's resume and or application reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment are subject to open records.
    • A public employee’s home address and anything that would be considered personal in nature would not be subject to an open records request.
  • Date of birth;
    • Not subject to open records
  • Social security number;
    • Not subject to open records
  • Date of employment;
    • Subject to open records
  • Position title;
    • Subject to open records
  • Departmental assignment;
    • Subject to open records
  • Salary;
    • Subject to open records
  • Record of awards, if timely;
    • Subject to open records
  • Disciplinary action; if timely;
    • Once final action has been taken this is subject to open records.  There can be exceptions to some of this information.  For example if the discipline occurred in regards to a sexual harassment complaint it is possible to keep the identity of the complainant from being disclosed.  This would need to be reviewed on a case by case basis and should involve the assistance of the city attorney. 
  • Completed training programs;
    • Subject to open records
  • Past changes in employment with the City, such as demotions or promotions;
    • Subject to open records

The medical/confidential file contains all information related to an employee’s medical condition, including pre-employment testing results, workers’ compensation information and FMLA forms.  It can also contain any other confidential information such as background or credit checks.  None of the information in this file is subject to open records.

Drug Testing results are required to be kept in separate files and are confidential and not subject to open records.  Only those with an absolute “need to know” should be granted access.

Contents of the payroll file will include W-4s, state withholding forms, garnishments, pay information, wage deduction acknowledgements and time-keeping records.  All time keeping records and salary information is subject to open records, but anything related to deductions, garnishments, marital or family status would not be subject to open records.  W-2s and 1099s are also subject to open records; however, the city would have to redact any personal info such as social security numbers, home address, child support obligations, or any other deductions. 

Form I-9 and any relevant documentation should never be left in an employee’s personnel file.  It is recommended that all employee I-9’s be kept in one file in alphabetical order.  This allows easy access if the Department of Labor decides to review them.  Also keep in mind that this information is confidential.  As with all confidential information access is highly restricted and never subject to Open Records requests.

Also, keep in mind that additional files may be necessary to maintain hiring records, investigations, EEO documents as well as other employment related documents. Cities must give special consideration to where and how they maintain these files, limiting access to only those with a need to know and protecting applicants and employees from discrimination, identity theft, and breach of privacy. 

Any city that is required to maintain equal employment opportunity (EEO) data collection should keep this information separate from personnel files and used only for reporting purposes such as for an affirmative action program (AAP), the Form EEO-1 and internal diversity tracking.  Similar to the I-9 form it is best to keep all forms in alphabetical order in one file.  Never allow EEO records to be attached or kept with other hiring or employment records.  This information is also not subject to open records.

If you receive a request for something in a personnel file that is not addressed in this article, contact Andrea Shindlebower Main, Personnel Services Specialist, KLC Legal Department. Next week will look at how to handle files of employees that are no longer employed by your city and those that were not hired by the city.

For questions on this or other personnel matters, contact Andrea Shindlebower Main, Personnel Services Specialist, with the KLC Legal Department and be sure to attend the Personnel Files 101 webinar on May 11th.

 

 

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City Personnel Files - Preservation, Safekeeping and Retention

Over the next few weeks, I will be reviewing personnel files.  This series will include such things as how to maintain them, what needs to be maintained and what documents are subject to the Open Records Act. We will review some of the legal requirements in regards to personnel files as well as several practical tips.

First, let’s look at some issues to be aware of when creating a personnel filing system.  Personnel files can be maintained in paper form or maintained electronically. No matter what format is used, the preservation, safekeeping and retention requirements that you need to know are the same.

If the city maintains the files electronically, you need to ask these questions:

  • Does the city have a good document management system?
  • Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?
  • Has the city implemented verified security and password protections to ensure access is provided only to those with a need to know?
  • Does the city have a backup system in place to ensure data is not lost?
  • Does the city have a secondary backup system in the event both the software and its backup are destroyed?
  • Has the city trained users on how to properly use and safeguard information in the document management system?
  • Does the city have a policy in place regarding the steps to be taken in the event there is a breach of security?
  • Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?
  • Is this information contained in your city personnel policy?

Or, if the city maintains paper files of personnel records, you need to ask these questions:

  • Are the personnel files maintained in a locked and secure cabinet?
  • Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?
  • Have all documents that contain protected information been removed from the main personnel file?  Remember, that documents which include medical information, Social Security numbers or other protected class information such as age, race, gender, national origin, disability, marital status and religious beliefs should not be accessible to supervisors, or anyone making an open records request.
  • Are personnel files organized in a logical way so that information within them is easy to find?  The two most common practices are to maintain files in chronological order or to have files with different sections for different types of documents such as performance information and training documents.
  • Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?
  • Is all of this information contained in your city personnel policy?

How long you keep the records that you have maintained is determined by the Kentucky Department of Libraries and Archives (KDLA).  The searchable Record Retention Schedules can be found on the KDLA website.  The website also contains important information on the proper destruction of records.

Next week will look at the law regarding what should be in what files, as well as some good practice tips. 

For questions on this or other personnel matters, contact Andrea Shindlebower Main, Personnel Services Specialist, with the KLC Legal Department and be sure to attend the Personnel Files 101 webinar on May 11th.

 

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Spring Forward … Straight time or overtime?

Weekly HR News –

Spring Forward … Straight time or overtime?

That can be the question when clocks are set forward one hour March 12th

The arrival of daylight saving time requires clocks to be moved forward one hour at 2:00 a.m. on Sunday, March 12. Shift workers who are on duty at that time and who normally work an eight-hour shift will actually work only seven hours.

"Some employers decide to pay the normal eight hours of pay for that shift as a matter of policy, but under the Fair Labor Standards Act, they are not required to include the additional hour of pay when calculating an employee's regular rate for overtime," noted Heidi Henson, JD, CCH workplace analyst.

For example, if someone actually works 40 hours in the week, the additional hour's pay for that daylight-saving hour would be at straight time, not overtime.  Even if the employee works over 40 hours in the city defined workweek, that one hour would not have to be included in the overtime calculations, unless the city policy states otherwise.

For more information or sample policies on this or any other personnel related matters contact Andrea Shindlebower, personnel services specialist.    

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Ban the Box – The Fair Chance Initiative
Posted on February 28, 2017 by Andrea Shindlebower in Hiring

Weekly HR - Hiring

Ban the Box – The Fair Chance Initiative

What does it mean to “ban the box”?  This term refers to the check box or question on an employment application regarding whether the candidate for employment has ever been convicted of a crime.  Ban-the-box laws and policies require employers to avoid asking about a candidate’s criminal convictions until after an interview has been conducted or when the employer extends a conditional job offer.

Why should an employer “ban the box”? The theory behind ban the box is that an employer gets a chance to form an initial impression of an applicant’s character before reacting to their criminal history. In addition to this theory, the United States Equal Employment Opportunity Commission (EEOC) has issued guidelines that urge employers to consider such factors as the crime that was committed and how it may relate to the job that the employee would be doing.  For examples, an employee that has been convicted of embezzlement would probably not be a good candidate for city treasurer.  In addition, the EEOC advises that an employer consider how much time has elapsed since the conviction.  The EEOC has also taken a very aggressive stance against employers that use conviction records against an employee without justification and when the use of such records could be viewed as discriminatory in nature under Title VII, and as such are based on race, color, religion, sex or national origin.  The easiest way to avoid any such discrimination is to “ban the box” on all applications for employment and within the interview process.

In addition to the concerns raised by the EEOC, public employers in Kentucky are also required to follow KRS 355B.020, which states that an applicant for employment cannot be disqualified solely because of a prior conviction of a crime, unless the crime is a felony or misdemeanor for which a jail sentence may be imposed, or the conviction (even when there is no jail time imposed) directly relates to the position of employment sought. This statute goes on to say that even when there is a conviction that can be considered under this statute, a public employer can determine the individual has been successfully rehabilitated.  Anytime that a public employer is considering using a criminal conviction as a reason for denial, they should involve their agency attorney in the final decision and also be certain to follow the Federal Credit Reporting Act requirements.

Legal requirements are not the only thing to be concerned about. Many citizens within our cities have some type of criminal record and many times a job opportunity can be the one thing that can turn someone’s life around.  In addition to the impact on the person that receives the job opportunity, the person’s family and the community where they reside are impacted.   

Currently, there are 25 states that have adopted ban the box laws or policies. Most recently, Commonwealth of Kentucky Governor Matt Bevin issued the “Fair Chance Employment Initiative” executive order. This executive order banned the question as to whether an applicant has been convicted of a felony from employment applications for certain jobs at the state level.  There are also various city and county ban-the-box laws around the country that apply to private and public employers.  To my knowledge, Louisville is the only city in Kentucky that has a ban-the-box ordinance in effect at the local level. The ordinance bans the Louisville Metro Council, as well as contractors and vendors doing business with Louisville Metro, from asking about an applicant's criminal background on the employment application. Metro Louisville also only performs a background check for otherwise qualified applicants and incorporates EEOC criteria into the assessment of applicants. The ordinance also states that the city prefers to do business with vendors and contractors that have adopted policies consistent with those of the city. The City of Hopkinsville has also decided to remove the question regarding criminal convictions from their employment applications.  The city will still do background checks but the checks will occur later in the hiring process.

What doesn’t “ban-the-box” do?  It doesn’t require that you hire employees with criminal convictions.  Many employers think that ban-the-box laws and policies will prevent them from doing background checks altogether. That is simply not the case.  Ban the box language still allows, and should even require, an employer do the criminal background check, but only after the interview process, or more preferably as a conditional offer of employment, and based on specific criteria related to the position of employment. 

And even with , it is also important to note that criminal backgrounds must be considered when hiring police and law enforcement telecommunicators under KRS 15.382, KRS 15.391, KRS 61.300 and KRS 15.540. These statutes state that they may not be convicted of a felony, or in regards to peace officers that they may not also be convicted of a crime involving moral turpitude.  In addition to law enforcement, criminal backgrounds must also be considered when hiring firefighters, including volunteers, as well as ambulance workers and rescue squad workers under KRS 17.167, 202 KAR 7:301, 202 KAR 7:201, 202 KAR 7:401. All of these statutes state that an applicant for these positions shall “not have been found guilty of, entered a guilty plea or Alford plea to aoffense or have completed a diversion program for aoffense.”

After Governor Bevin signed the “” executive order he said, "I want to specifically challenge each and every private employer in this state to think about doing the exact same thing."  The Kentucky League of Cities would like to add public employers to this “ban the box” challenge and to continue to encourage fair hiring practices.  If you would like more information, a sample policy and/or ordinance, contact Personnel Services Specialist, Andrea Shindlebower Main.   

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Romance in the Workplace
Posted on February 13, 2017 by Andrea Shindlebower in Behavior and Work Etiquette

Weekly HR News –

Romance in the Workplace

Love is in the air!  And unfortunately for cities, sometimes that love can come in the form of those in employee relationships.  So what is an employer to do about these situations? 

Some employers choose to enact policies that complete ban romantic relationships in the workplace, but even this is not without its own set of issues.  By completely banning you can force employees that are in a romantic relationship to go into hiding, which leaves the city completely unaware and unprepared for the issues that may result.  By not dealing with this out in the open it can be the source of even bigger problems down the road.

Other employers choose to allow it to happen as long as there is disclosure.  This can also create problems of its own.  Many employees will perceive that preferential treatment is being received by a coworker based on their relationship, especially when one is in a supervisory role over the other. 

No matter the policy that your city enacts, you need to review your ethics ordinance and personnel policies to see what they say about employees and supervisory relationships.  In addition, does this relationship create a conflict of interest or the appearance of a conflict of interest and is it the subject of office gossip?  Any relationship, whether it is causal or romantic should not have a negative impact on city business.  And lastly, if love goes south, an employee can claim retaliation and harassment based on the previous relationship, which along with many other problems, may prove to be costly in court.

So how can the city protect itself from love gone wrong? 

  • First, have a clearly written policy with expectations set out in an easy to read and understand format.  And, it is recommended that those in supervisory positions should not be allowed to date subordinates under any circumstances. 
  • Second, if your city ethics ordinance applies to city employees, and your nepotism policy applies to dating relationships, be certain that it is also included in the personnel policy. 
  • Lastly make sure that your sexual harassment policy is up to date, has a clearly established complaint procedure and that all employees and supervisors are trained on what the policy states and what it requires.

Running a city is not all champagne and roses, so you need to protect the city by being proactive.  One of the ways to do this is to have a current and legally compliant personnel policy.  If your city needs to update personnel policies you need to work with someone who not only has expertise in personnel law and human resource matters, but someone who knows municipal law as well.  KLC can offer this expertise in a way that is specific to your city needs.  Whether it is creating or reviewing city personnel policies, providing training on your city policies, sexual harassment, or on a variety of specialized HR topics, we have you covered.  For more information on this service or any other personnel related matters contact Andrea Shindlebower at ashindlebower@klc.org.   

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IRS Lowers Standard Mileage Reimbursement Rates for 2017
Posted on January 23, 2017 by Andrea Shindlebower in Employee Payments/Reimbursements

Weekly HR – Mileage Reimbursement

IRS Lowers Standard Mileage Reimbursement Rates for 2017

For cities that use the IRS rate to reimburse for mileage, be aware that on January 1, 2017, the IRS lowered the standard mileage reimbursement rates.  That rate went down from .54 to 53.5 cents per mile on January 1, 2017.

For more information, sample policies or questions contact Andrea Shindlebower at ashindlebower@klc.org

For for the IRS article go here.  

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