Weekly HR News –
Municipal Employee Handbooks
An employee handbook is a valuable communication tool to allow employees to understand what is expected of them and what they can expect from the city as the employer. In addition, an employee handbook will be of vital importance in defending an employment-related claim. It shows that your city had in place personnel and employee policies relating to the employment relationship, that the employee was aware of those policies and that those policies were followed by the city.
Employee handbooks should be drafted in clear, concise and easy-to-understand language. At a minimum, employee handbooks should include the following:
- A conspicuous disclaimer in the front of the handbook that the handbook does not create contractual rights and that employees continue to be terminable at will.
- A clear, comprehensive equal employment opportunity statement that includes state and federal law requirements.
- A policy regarding how an employee that may need an ADA accommodation would make that request, and that the employee must initiate the request for a possible accommodation.
- A harassment/discrimination policy condemning all forms of unlawful harassment, not just sexual harassment. The policy should also clearly set out an easy-to-follow process for filing a complaint and stating what action will be taken, including termination, if it is determined that harassment or discrimination has occurred. In addition, there should be provisions that provide protection for an employee that is retaliated against based upon the filing of a complaint.
- An explanation of the employee disciplinary procedures and examples of the types of behavior that will subject an employee to discipline or immediate termination and the process that will be followed in addressing disciplinary problems. In addition, make sure that the examples of behavior include a disclaimer that they are not an all-inclusive list of the items that can result in disciplinary action.
- Information on the applicable forms of leave that the city provides, or is required to provide by law. The policy should include information on the process for requesting leaves and any requirements such as forms that must be filled out and any applicable timeframes.
- A policy as to what employees are entitled to overtime and when overtime is paid. This policy should also include a requirement that employees must request permission from the supervisor before the time is worked. In addition, include information on work that is done “off the clock” and how and when this time is compensable for nonexempt employees.
- Information on the privacy protection requirements that are found in 61.931- 61.934.
In addition to the above, an employee handbook may address any and all policies you may have, such as: hiring procedures, time cards, compensatory time, payroll deductions, personnel files, job references, social media and other computer usage issues, benefits, dress codes, alcohol and drug use policies, expense reimbursements, reporting work place accidents, return to work requirements and safety guidelines.
To be effective, cities should be certain that every employee is provided with a personal copy of the employee handbook at the time of hire, as well as the city ethics ordinance, if it is applicable to city employees. Employees should also be required to sign an acknowledgement stating that they received a copy of the employee handbook and that they are responsible for reading and understanding the information contained in the handbook. This signed acknowledgement should be placed in the employee's personnel file and maintained pursuant to the Kentucky Department of Libraries and Archives Record Retention Schedule. In addition, any time that an amendment is made to the handbook, employees should be required to sign an additional acknowledgment regarding the specific change.
In addition to providing an employee a copy of the handbook, employers should provide training for employees on any changes to the policies and allow time for them to ask any questions that they may have regarding the handbook. Maintaining proof of that training and who was in attendance, can provide excellent proof in the event that an employee claims that they were not aware of something contained within the handbook.
The executive authority and/or human resources person should continually review city policies to be certain that they are up-to-date with any recent employment law changes. If it has been more than a few years since they were last updated, they are not current. Checking on these matters now could prevent costly liability issues from occurring in the future.
If you need to update your policies, keep in mind that cities are unique. When it comes to creating or updating your 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’s needs. Whether it is creating or reviewing city personnel policies or providing training on your city policies or on a variety of specialized HR topics, KLC has you covered.
For more information on making sure your policies are legally compliant, plan to attend the KLC Conference, Wednesday October 4th at 10:45 for an informative session on this topic. If you can’t make the conference, or if you would like to discuss a review of your current policies contact personnel service specialist, Andrea Shindlebower Main for details on this service.
Weekly HR News - Hiring
New Form I-9 Effective September 2017
The U.S. Citizenship and Immigration Services (USCIS) has released a new version of the I-9 Employment Eligibility Verification. The new form is dated 07/17/17 in the lower left corner, and it replaces a version dated 11/14/2016. Employers may use either form through September 17, 2017, but beginning on Sept. 18, 2017, the new version of the form must be used for any new hires.
The USCIS states the changes to the form are as follows:
Revisions to the Form I-9 Instructions:
- The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to its new name, Immigrant and Employee Rights Section.
- The words “the end of” have been removed from the phrase “the first day of employment.”
Revisions related to the List of Acceptable Documents on Form I-9:
- The Consular Report of Birth Abroad (Form FS-240) has been added to List C.
- All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C.
- All List C documents except the Social Security card have been renumbered.
The USCIS has also issued a revised Handbook for Employers (M-274) that contains the most current information on completing the I-9. Note that ALL employers, including cities, are required to fill out an I-9 form on all new hires.
This form is used to verify the employee’s identity and their ability to work in the United States and should be filled out on the first day of employment with the city. Penalties for not filling out this form, or from filling it out improperly can cost the city thousands of dollars.
Also, keep in mind that if you are going to keep paper copies, it is a good practice to have one file with all employee I-9s within that file in alphabetical order. This is to be sure that you can easily comply with the three-day requirement to turn over these documents if requested by the Department of Labor or Department of Justice. Another reason for this practice, is that the information on these forms is confidential and would never be subject to an open records request. Having them outside of the personnel file, and in a locked cabinet, ensures that they will remain confidential.
Retention of these records will be at least as long as the employee works for the city. Once the employee has left city employment you are required to keep them three years from the date of hire or one year from the date of termination whichever is longer. The USCIS website can assist in calculating the required retention of each form.
For questions about this or any other employment related matters, contact personnel service specialist, Andrea Shindlebower Main.
Weekly HR News – Drug Testing
Drug Testing For Public Agencies
We expect employees to come to work free of their personal issues. However, a personal struggle as all-consuming as addiction will inevitably spill into the professional realm. That is why it is crucial for employees and supervisors alike to understand how addiction manifests itself in the workplace and to have a thorough knowledge of related city personnel policies.
Personnel policies should begin by emphasizing in positive terms the need for safety in the workplace and adherence to job requirements and work quality, and go on to cite goals such as improving safety and productivity.
When writing or amending policies, cities also need to keep in mind that the laws regarding governmental drug testing policies, unlike for the private sector, place restrictions on who, what, when and how the testing can done. Governmental employers must have a compelling justification for testing or risk violation of the employee’s Fourth Amendment rights.
Under a city policy, employees can be tested based on reasonable suspicion, post-accident and pre-employment (only after a conditional offer of employment). Random testing, unlike in the private sector, is reserved for those employees who are considered safety-sensitive. These employees have safety-sensitive responsibilities to citizens within the areas of public safety. Examples of such employees include:
- Police officers
- Emergency dispatchers
- Heavy equipment operators
- Employees with commercial driver’s license (CDL)
- Mechanics that work on CDL-regulated vehicles
- Gas pipeline workers
- Personnel who drive vehicles carrying senior citizens, handicapped peopled or children
Before doing any type of testing, a written policy must be in place and a copy of the policy should be given to all employees at least 60-90 days in advance of the start of testing. This allows any employee with a drug or alcohol addiction to seek rehabilitation. And be certain that all employees sign a receipt of acknowledgement that they have received, understood and agree to abide by the policy.
Your policy must explain how, when, where and for what reason testing may occur and outline the steps that will be taken to ensure employee confidentiality. The records should be stored and locked separately from general employment records with access to these records only on a strict need-to-know basis. It should also explain the consequences of an employee’s refusal to test, interference in the testing process, or a positive test.
In addition, it is important that the policy address federally regulated employees (such as CDL) separately. One of the main differences is the requirement that federally regulated employees are randomly tested in their own separate pool. The regulations also require that a Medical Review Officer (MRO) review the drug tests before they are given back to the employer. Even though this is only a requirement for federally regulated employees, it is recommended that an MRO be used for all the city’s drug testing, since they are formally trained and certified.
Lastly, the policy should also set out guidelines for mandatory training for both supervisors and employees. The ability to know the ins and outs of testing can only be ascertained through sufficient training. Remember that lack of knowledge can lead to liability issues that cities cannot afford.
A drug and alcohol policy is much more than drug-testing in the workplace. An effective policy is a legally compliant policy that provides employee awareness and education, supervisor training and a plan of action. Taken together, it conveys a full, comprehensive program designed specifically to meet the needs of your city and that will set expectations for current and future employees.
For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist and be sure to attend the Drug Testing webinar on September 8th.
Weekly HR News - Hiring Practices
The Importance of Up-to-Date Job Descriptions
Even though there are no state or federal requirements to have job descriptions, there are many legal issues that can be avoided if they are current and properly drafted. Some of those legal issues include requests for Americans with Disabilities Act (ADA) accommodations and employee classification.
Under state and federal ADA laws there are requirements for reasonable accommodations for qualified individuals with disabilities. Job descriptions serve an important purpose when it comes to determining what the essential functions of the job are, and they can be used by physicians to determine whether or not the employee can perform the required job duties. If it is determined that the employee or applicant cannot perform the essential functions, the employer must decide whether or not a reasonable accommodation can be provided. If a complaint is filed against the employer based on the denial of an accommodation, the courts will review the job description, in addition to other pertinent information, to determine whether or not the employer was correct in the denial.
In addition to ADA accommodations, job descriptions can assist in determining whether a candidate or employee should be exempt or nonexempt pursuant to Kentucky and federal law. A job description must accurately reflect the duties of the position as well as include the applicable exemptions that show that the employee in the position qualifies as being exempt from overtime. For more information on the requirements for exemptions see the Exempt v. Nonexempt blog post. As with ADA complaints, if an employee makes a complaint based on misclassification, one of the items that will be reviewed is his or her job description.
On the practical side, employers should use job descriptions when creating advertisements for hiring new employees. Having a current job description will make it easier to craft the job advertisement, serve as a platform for interview questions, and be an educational tool for interested candidates.
For employees that are already on the job, this document is a great communications tool on the required aspects of their position. The descriptions can include performance standards and work rules, such as specific safety requirements that apply to that particular job. Supervisors can also use them for backup of any disciplinary action that results from not meeting expectations that are set out in the description, especially if the employee has signed the document.
Lastly, many employee positions require specific licenses, certifications, degrees and annual trainings that should be included within the description. This is also a great place to reiterate that the position requires a valid driver’s license; is subject to an annual motor vehicle check, physical exam and/or drug testing as set out in your policies; or that those in the position are considered essential in the event of inclement weather or natural disaster. Make sure to also include other important internal qualifications such as attendance requirements and being able to work well on a team.
When up-to-date, the job description can assist the employer in creating a more productive, legally compliant workplace. But when allowed to become out-of-date, or when poorly drafted, the job description can be a major liability for the employer.
For questions on creation of job descriptions, sample job descriptions or other personnel matters, contact, KLC Personnel Services Specialist, Andrea Shindlebower Main.
Weekly HR News - Hiring
Police Officer Reimbursement Contracts – Changes Effective June 29, 2017
When hiring police officers, many cities enter into contracts that require reimbursement for the initial hiring costs if the officer leaves to go to another law enforcement agency. Initial hiring costs include, but are not limited to, the application process, training costs, equipment costs, salary and fringe benefits. The time frame allowed for reimbursement is from the officer’s initial application until his or her graduation from the Department of Criminal Justice Training (DOCJT). In addition, these reimbursement costs are required to be made by the law enforcement agency that hires the police officer away from the initial agency.
Prior to the 2017 legislation session, the public agency could only receive a prorated amount based upon the percentage of time that the officer completed during his or her employment contract and reduced by the cost of the training provided by the DOCJT for the officer. HB 337 amended KRS 70.290 by removing the prorated requirement. The statute now states that the amount of reimbursement authorized “shall not be prorated, and shall be for the full amount” of the initial hiring costs from the officer’s initial application until their graduation from DOCJT. This change is effective for any new hires after June 29, 2017.
For questions on this or a sample contract, contact KLC Personnel Services Specialist Andrea Shindlebower Main.
Weekly HR News - Hiring Practices
Before Performing Preemployment Background Checks Read This!
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 and criminal records checks. And in some cases, as with police officers, background checks are a requirement before hiring.
Under the Fair Credit Reporting Act, employers must obtain permission to get 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. More information on notice requirements can be found on the Bureau of Consumer Protection website at http://www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know.
In addition, KRS 335B.020, which was amended by SB 120 in the 2017 legislative session, states that even if an applicant has been convicted of a crime, he or she cannot be automatically disqualified for public employment, which includes employment with a city. The only exception is when the crime “directly relates to the position of employment sought ...” And even if it directly relates to the position, an employer can still hire if they believe the person has been rehabilitated. To consider whether or not an individual has been rehabilitated, the employer should consider the nature and seriousness of the crime for which the individual was convicted and how much time has passed since the conviction; how the crime may relate to the position of public employment; and the relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position.
Equal Employment Opportunity Commission (EEOC) violations can also be a possibility when using background checks in hiring decisions. Follow EEOC guidelines to be certain that you are not using convictions as a basis to refrain from hiring someone, especially in regards to a person’s race or national origin. For more information on avoiding EEOC violations when using criminal background checks, see the EEOC website at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
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 hiring decision 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 matters, contact Andrea Shindlebower Main, personnel services specialist.