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.
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 firstname.lastname@example.org.
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 email@example.com.
For for the IRS article go here.
Weekly HR News - Hiring
Updated I-9 Form
The United States Citizen and Immigration Services (USCIS) has updated the I-9, Employment Eligibility Verification form. Beginning January 22, 2017, the USCIS will no longer accept the form dated March 8, 2013. The new form can be found at https://www.uscis.gov/i-9 and the date of any form can be found at the bottom of the page.
Some of the changes in the new version include:
- Employees only need to provide other last names used in Section 1, rather than all names used.
- The certification in Section 1 for certain foreign nationals takes less time to complete.
- There are additional spaces to enter multiple preparers and translators.
- There is a dedicated area to enter additional information that employers have been required to notate in the margins of the form.
Also, when the revised Form I-9 is completed on a computer, users will see:
- Checks to certain fields to ensure information is entered correctly.
- Drop-down lists and calendars.
- Instructions on the screen that users can access to complete each field.
- Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over.
ALL employers, including cities, are required to fill out an I-9 form on all new hires. Employers, must complete a Form I-9 for every employee hired after November 6, 1986. The I-9 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 1 year from the date of termination whichever is longer.
For additional questions regarding this or other personnel related matters, contact Personnel Services Specialist, Andrea Shindlebower Main.
Weekly HR News – FMLA
Family and Medical Leave Act (FMLA) Forms
FMLA forms are required for notifying employees of their rights and responsibilities, certification of leave based on the specific request and designating FMLA leave by the employer. The forms that must be used are located on the Department of Labor (DOL) web page.
For easier reference, here are the links to the current FMLA forms:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Current Service Member for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
In addition to the DOL required forms listed above, many employers have their own additional forms that deal with the employee’s request for FMLA, medical updates and return to work.
All FMLA forms and information about an employee’s FMLA leave and condition must be kept confidential and separate from other employee files. It is an FMLA violation for an employer to share information about an employee’s FMLA leave with other employees.
For additional questions regarding FMLA or other personnel related matters, contact Personnel Services Specialist, Andrea Shindlebower Main.
Weekly HR News – FMLA
Salary and Benefits while on FMLA
In many cases, cities choose to provide unpaid leave while an employee is on FMLA, but may require that an employee use accrued paid leave (i.e. vacation or sick leave) during FMLA leave. However the city decides to handle, the information must be included within the employee handbook.
While on FMLA the employer must maintain the employee’s group health insurance at the same level they would if the employee were not on FMLA. For example, if the employer pays 100% of the employee plan, the employer would continue to do this during leave. If the employee pays a portion of their health insurance premium, the employee must continue to pay their portion while on leave. The employer has the option to pay the entire amount during the employee’s absence and recover the employee’s portion when the employee returns to work. The same is true, if the employer pays 100% of the family plan, the employer would continue to pay 100% of the family plan while the employee is on leave. (29 C.F.R. § 825.209)
If the employee is responsible for any portion of their premium and fails to pay while out on leave, the employer’s obligation to maintain health insurance will cease once the premium is more than 30 days late. However, once the employee is reinstated to work they must be restored to the coverage they would have had if leave had not been taken and the payments had not been missed.
Other benefits provided by the employer, such as holiday pay, seniority and paid leave, are maintained as outlined in the employee handbook. If not specified under FMLA in the handbook, they will or will not accrue depending on how other types of unpaid leave are handled. For other benefits, such as elected life insurance coverage, the employer and the employee may make arrangements to continue these benefits during periods of unpaid FMLA leave. As with the group health insurance, an employer may elect to continue such benefits to ensure that the employee will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the leave, the employer may recover only the employee's share of premiums it paid to maintain other "non-health" benefits during unpaid FMLA leave.
For additional questions regarding FMLA or other personnel related matters, contact Andrea Shindlebower Main, personnel services specialist.