Weekly HR News – FLSA
Tracking Time for the Exempt Employee
According to the Federal Labor Standards Act (FLSA), nonexempt (hourly) employees must be paid a minimum wage, as well as time and one-half their regular rate for all hours worked over 40 in a defined work week. Whereas, exempt employees are paid on a salary basis and based on other qualifying reasons, are exempt from overtime wages even if they work more than the designated 40 hours in a defined work week.
Hopefully your city has determined, or is working on determining, who is and who is not exempt from overtime under the new FLSA laws come December 1st. If you need assistance review the previous article on this subject and plan to attend the KLC Conference session on the new FLSA changes this October.
One question that always comes up in regards to exempt employees is whether or not the employer can actually track the time worked by exempt employees? The answer to that is a confusing yes and no.
So, let’s look at what an employer can and can’t do. First, there is nothing that prevents an employer from gathering in and out times, even if the employee is exempt. The problem would come up if the employer actually uses it to determine hours worked for payroll purposes, as exempt employees are not paid based on hours worked. And if tracking is used it must be for a legitimate reason other than calculating pay and the employee cannot be disciplined for failing to use the tracking method.
Some legitimate reasons include the allowance of comp time for exempt employees; when an employer is trying to determine the need for an additional employee; or the ability to make certain that all employees are following the schedule as set out in the personnel policy. One other important reason is in regards to the avoidance of the issues that may come from the misclassification of employees as exempt. If a mistake is made in classification (stating that an employee is exempt when really they should be non-exempt) and the employer has records of all hours worked the calculation of any overtime will not be as complex. No matter what the reason NEVER use tracking to calculate the exempt employees pay.
Also important to note is that employers should track time for nonexempt and exempt employees differently. Nonexempt employees’ time worked is calculated by the hour. Calculating exempt employees’ time can be a bit more challenging. This can be done in different ways. Some employers track the days worked by exempt employees, yet do not track hours. Other employers track time worked by applying any vacation or sick leave for any hours not worked. In other words, the assumption is made that an exempt employee will be paid a regular salary unless any vacation or sick leave is utilized. This way, an employer can correctly record the time an exempt employee has worked, calculate any vacation time or sick leave that was used, while still avoiding tracking the exempt employee by the hour.
There are many Department of Labor Opinion Letters as well as court cases that give examples of what is and is not acceptable. In Douglas v. Argo-Tech Corp., (6th Cir. 1997) the fact that an employee used a time clock did not make him a non-exempt employee. The exempt status was legally based on the administrative exemption. The need for tracking was based on the fact that the employer was required as a government contractor to keep records of the hours of all the employees no matter if they were exempt or non-exempt. Unlike the non-exempt employees his salary was not based upon the time clock hours, he was not forced to use the time clock and there was no discipline for failing to use it.
In a second case Talbert v. American Risk Ins. Co., Inc. the courts examined the ability to track time for compensatory leave. They stated that the FLSA provision that authorized governmental employers to provide compensatory time off in lieu of payment of overtime compensation to non-exempt employees did not prohibit private employers from using compensatory time for exempt, salaried employees, as long as employer's use of compensatory time did not result in any improper deductions from employees' salary.
As you can see from the information above, that although it can be done, tracking of an exempt employee’s time is a complex matter that requires serious thought and planning before implementation. If an employer is going to track, the best practice is to have a written policy to notify employees of any established requirements. The written policy would state the requirement, (i.e. to record and track hours for compensatory time) as well as the method used for recording hours and to specifically state that this information will not be used to calculate payroll.
For questions on wage and hour issues or other personnel matters, contact Andrea Shindlebower Main with the KLC Legal Department.
Weekly HR News - Record Retention Requirements
Should They Stay or Should They Go?
Want to see your city clerk’s head spin? Ask him or her how many public records the city has on file. The answer inevitably would be too many to count, and maintaining and organizing those documents is often an overwhelming task. However, cities are required by law to establish and maintain a public records management system in accordance with KRS 171.410- 171.740 (the State Archives and Records Act). Cities must use the procedures for retention and disposal located in state administrative regulations (725 KAR 1:030). This includes all records, regardless of format, defined in KRS 171.410 as “…all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, and other documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.” In addition to the obvious, retention can include electronic messages as well as social media sites.
Luckily, the Kentucky Department of Libraries and Archives (KDLA) maintains what is known as a records retention schedule. This is a searchable list on their website of what should be retained, how long it should be retained, and what can be disposed of by cities. The schedule can be found at http://kdla.ky.gov/records/recretentionschedules/Pages/LocalRecordsSchedules.aspx.
Proper maintenance involves ongoing inventory, so the next question in records management is, how often should a city inventory their records? If the city has never done this, it should do so immediately. In addition, there are other statutory requirements that the city should be aware of, such as the requirements in KRS 83A.060. This statute requires that at least once every five years the ordinances in the composite index or code of ordinances must be examined and revised to eliminate redundant, obsolete, inconsistent and invalid provisions. While this is the minimum statutory requirement, it is advisable for a city to undertake this review each year. There are no minimum requirements for other documents such as the personnel policies, unless they are in ordinance form. However, we highly recommend that they be reviewed no less than at the beginning of each new administration to check for changes in the law, incorporate preferences of the new city administration, and compare with budget constraints.
When it is time for the review, who should be involved in the process? The persons involved in the inventory should include the records custodian (city clerk), any other city personnel that are familiar with the records, and the city attorney. If additional help is needed or if the city needs assistance getting a management system in place, they may apply for grants from the Department of Libraries and Archives to assist in the management and preservation of their public records. The process for applying for the grant as well as the required criteria can be found in state regulations, specifically 725 KAR 1:050, and by calling the Department of Libraries and Archives at 502-564-8300.
As the process begins to unfold, the decision to retain or destroy is of the utmost importance. Before destroying any documents the records custodian must affirmatively answer the following questions:
- Have the records been authorized for destruction in accordance with the latest version of the
record’s retention schedule?
- Is there any active or pending litigation, audit, open records request, or appeal of an open records decision that involves the records in question?
- Are the records no longer required under any other legislation, and have all statutory and regulatory requirements been fulfilled?
- Are the records of no further administrative or business use to the agency?
- Has a KDLA Records Destruction Certificate (PRD Form 50, which can be found at the link listed below) been completed and signed by the appropriate authority?
- Will the records be destroyed in an appropriate and confidential manner?
Keeping your city records organized and updated will not only ensure your city is in compliance with the law, but make City Hall run more smoothly. Additional information on records retention as well as the sample forms and procedures can be found at http://kdla.ky.gov/records/recretentionschedules/Pages/default.aspx or by calling the KLC Legal Department.
What can an employer, subject to the Americans with Disabilities Act (ADA), do when an employee has been injured on or off the job, has used all of their paid leave time, and 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 (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
- Whether the leave will be a block of time (for example, 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 (for example, 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 (for example, 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 (for example, 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 (for example, 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 (for example, 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 latest publication released by the EEOC or contact Andrea Shindlebower Main, KLC personnel services specialist.
Weekly HR News –
Municipal Employee Handbooks
Every year brings new challenges, and one of those challenges is the city’s employee handbook. 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. The statement should be something to the effect of:
The City Employee Handbook does not create any contractual or other legal rights. The personnel policies contained in this Handbook do not alter the City’s at-will employment policy nor does it create an employment contract for any period of time.
- A clear, comprehensive equal employment opportunity statement such as:
The city provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, or genetics.
In addition to federal law requirements, the city complies with applicable state and local laws governing nondiscrimination in employment. This policy applies to all terms and conditions of employment, including recruiting, hiring, placement, promotion, termination, layoff, recall, transfer, leaves of absence, compensation and training.”
3. The city's sexual 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.
4. An explanation of the employee disciplinary procedures stating 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.
5. Information on the city's personnel file policy including a statement as to what information will be maintained in an employee's personnel file. The policy should also include a statement that only personal information such as home address, social security number, medical information, marital status and other matters unrelated to the performance of public employment will be considered confidential. Any other information that relates to the performance of public work is considered an open record and open to public inspection. In addition, the policy should include the procedure on how an employee can make a request to review their own personnel file.
In addition to the above, an employee handbook may address any and all policies you may have, such as: time cards, overtime, benefits, dress codes, alcohol and drug use policies and safety guidelines.
Cities should be certain that every employee is provided with a personal copy of the employee handbook at the time of hire. They 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. 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.
The executive authority should 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. You should also make sure that all employees have a copy and have signed off as having received a copy of the current policies. 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 this service or any other personnel-related matters, contact Andrea Shindlebower Main, KLC personnel services specialist.
Weekly HR News – FLSA
Employment Law Posters – Increase in Penalties and New FMLA Poster
Effective July 5, 2016, a new Equal Employment Opportunity Commission (EEOC) rule more than doubles the maximum fine, up to $525 per violation, for employers that do not comply with the posting requirements under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
Under the federal law, employers with 15 or more employees are required to post the notice stating employee rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability or genetic information. These posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.
The U.S. Department of Labor (DOL) website provides assistance for employers in deciding which federal posters are required, and provides those posters for free. State-required posters and notices can also be printed at no cost from the following websites:
Kentucky Safety Poster: https://kysafe.ky.gov/Documents/OSH-Poster-11x17-English.pdf
Kentucky Child Labor Laws: https://labor.ky.gov/Documents/KY%20Child%20Labor%20Poster%20English.pdf
Kentucky Wage and Hour: https://labor.ky.gov/Documents/KY%20Wage%20and%20Hour%20Poster%20English.pdf
Kentucky Wage Discrimination: https://labor.ky.gov/Documents/KY%20Wage%20Discrimination%20Poster%20English.pdf
Kentucky Unemployment: https://labor.ky.gov/Documents/ui_ben5_1_0108.pdf
Kentucky Equal Employment Opportunity: https://labor.ky.gov/Documents/Equal%20Employment%20Opportunitiy%20Poster%20English.pdf
Also important to note, DOL recently issued a new Family Medical Leave Act (FMLA) poster to replace the previous one that is required to be displayed by employers. Currently, the DOL is not requiring employers to replace their existing posters; however, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster and update them if necessary. As with all other posting requirements, cities are required to post FMLA posters in a conspicuous place in the workplace and can face monetary fines for noncompliance.
KLC strives to notify cities of new poster requirements and changes as they occur; however, all city employers should check the above links and the federal and state Department of Labor websites frequently as the statutory laws and federal regulations can change.
For questions on wage and hour issues or other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist.
Weekly HR News
How Can Cities Prevent Employment Lawsuits?
First and foremost, cities need to know the laws that are applicable to them as an employer. This includes federal, state and local laws, as well as the information contained within your personnel policies. As an employer, you need to keep yourself educated as to what you can and cannot do within the workplace.
Does the need to stay on top of employment laws mean that your employees know more about employment laws than you? No, but what usually happens is that employees who feel unfairly treated or wronged by the employer will call their attorney. Once retained, the attorney can dig deeper to find legal violations they can use to pursue a lawsuit.
To avoid these costly situations, look for signs that you may have a toxic workplace, such as highly stressed employees, low morale, increased absences, employee burnout, high turnover rate, negative feedback and lack of employee loyalty. Once identified, take a look at those departments and create a strategy on how to tackle the issues. Make sure your supervisors are receiving training on how to be effective supervisors and how to implement personnel policies. If you have a policy on performance evaluations, make sure that those doing the evaluating are trained on how to do this and that they are being done as scheduled.
In many cases, unhappy employees are under the control of a manager or supervisor who does not have the skills to manage. All it takes is one bad supervisor who harasses an employee to the point of quitting, and you have a lawsuit. This becomes a much worse situation when you know about it and do nothing. If you know of employees that are working within such a department, do something about it now. Get the supervisor training or take employment action against them in order to get a handle on the situation.
The next issue is money. Salaries, whether we like it or not, are what employees use to measure their worth. Make sure that your employees are being paid according to your pay and classification plan. If you give merit raises based on performance evaluations, be certain that supervisors are doing the evaluations correctly and giving accurate information about the employee’s performance. An employee who finds out that they are being paid significantly less than other employees (and remember this is subject to open records) can lead to that toxic environment discussed above. And, doing performance evaluations incorrectly can lead to claims of discrimination and wrongful termination.
Lastly, there are many issues when rules or policies and procedures are not enforced equally. Employees very quickly pick up on favoritism, and when this affects those within a protected class, you can find your city in a lawsuit. When disciplining employees for violating your policies, make sure all employees, in all departments, are being disciplined in the same way. Be certain everyone knows what your policies and procedures state, and have them sign an employee handbook acknowledgement every time a change is made to the policy.
Juries seem to favor employees when a bad workplace is allowed to fester. The financial cost to the employer can be high, but don’t forget that the employee morale costs can be equally as devastating.
For questions on this or other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist.