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How Can Cities Prevent Employment Lawsuits?

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.


Increase In Salary Level for Exempt Employees Will Affect 2016-2017 City Budgets

Weekly HR News – Budgets

Increase In Salary Level for Exempt Employees Will Affect 2016-2017 City Budgets

By now, most of you have heard about the Department of Labor’s (DOL) changes to the regulations that mandate which executive, administrative, and professional employees are entitled to the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay protections. The current regulations were last updated in 2004, and stated that an employee must make at least $455 per week ($23,660 per year) to be exempt from overtime. With the new change, which is effective December 1, 2016, the DOL has updated the salary level required for exemption to $913 per week ($47,476 annually), with automatic increases every three years to maintain the level at the 40th percentile of full-time salaried workers in the lowest-wage census region.

Both KLC and the National League of Cities (NLC) are very aware of the impact that these changes have on cities and as such, submitted comments last August in response to the Notice of Proposed Rulemaking.  The two primary recommendations were (1) to use a regional approach (due to variations in pay based on location) and (2) to implement the change over the course of three years.  Here is an excerpt from the Final Rule discussing the concerns:

“After considering the comments, the Department has made several changes from the proposed rule to the Final Rule. In particular, the Department has modified the standard salary level to more fully account for the lower salaries paid in certain regions. In this Final Rule, the Department sets the standard salary level equal to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (currently the South).”

What does this mean for city budgets right now?  Any of your employees that are currently making less than $913 per week would be entitled to overtime for any hours worked over 40.  As cities begin budget preparations for the coming fiscal year they should include the increased overtime costs based on the passage of this rule or consider an increase in wages for employees that may be close to the threshold. However, be aware that an increase in compensation, whether it is salary or overtime, could result in pension spiking issues penalties. 

The Department of Labor is offering several free webinars to review these changes.  More information on the webinars can be found on the DOL website.  In addition, KLC is offering an all-day training June 1 that will offer in-depth discussions on this topic as well as many others.  Information and registration for Part I of this training can be found on the KLC website.

If you have any questions about this or need any additional information contact Andrea Shindlebower Main, KLC personnel services specialist.   


ALERT! CORRECTION! Increase In Incentive Pay For Police and Fire Will Affect 2016-2017 City Budgets


Increase In Incentive Pay For Police and Fire Will Affect 2016-2017 City Budgets

We recently ran the following article regarding increased overtime costs for police and fire based on the change in incentive pay effective July 1, 2016.  The article incorrectly stated that incentive pay is only included in unscheduled overtime for police and fire; the correct statement should have been that incentive pay is included in all police officer overtime and only included in unscheduled overtime for fire department members.  See the full article as corrected below:

Included in the passage of the Commonwealth’s budget was an increase in incentive pay for police and fire.  The current amount of $3100 will increase to $4000 per year effective July 1, 2016. 

What does this mean for city budgets?  Most importantly, this change will affect the payout of all overtime for police and the unscheduled overtime for fire.  As cities begin budget preparations for the coming fiscal year they will have to factor these increased costs.

As a refresher, unscheduled overtime for fire personnel includes any hours worked over 40 in a workweek that are not part of an established work schedule. The hourly rate addition for unscheduled overtime is determined by dividing the annual amount of the supplement ($4000) by 2,080.  For example, if a firefighter works 54 hours in a week where he or she is normally scheduled to work only 48, the firefighter has 6 hours of unscheduled overtime. The city will have to pay overtime on the supplement for the 6 hours of unscheduled overtime.

Incentive pay for all others (police, EMS) should be included in both scheduled and unscheduled overtime.

For more information on this service or any other personnel-related matters, contact Andrea Shindlebower Main, KLC personnel services specialist.   


Hiring, Employee Retention, Wage and Hour Issues - Oh My!

Hiring Practices

Hiring and retaining the best employees can be one of the most important tasks that a city can undertake.  Employees can be the heart and soul of a successful city.  Therefore, it is essential that cities hire the best employees and work to retain them. 

Another reason to do this right the first time has to do with the costs of hiring and training new employees, not to mention the time that this takes.  The costs to publish an advertisement, background checks, drug tests, as well as the time it takes to sort through applications and the interview process can be detrimental to the city budget.  In addition, there are the costs associated with and time it takes to train a new employee and it can also place added pressure on the remaining employees that must take on additional tasks.  To avoid these issues make sure you make every effort to hire right the first time.

Some of the ways to hire the best employees start with a current and accurate job description.  When creating the advertisement for the position, having a current job description is crucial.  The advertisement should be based on the essential functions of the job.  What must the potential employee have in order to qualify to do this position?  By identifying these requirements prospective candidates know whether or not they have the skills, education, training and background to do the job, and it enables the city to weed out those who do not.

The next step is the application and the interview process.  Be certain that both the employment application and the city interview process do not contain any questions that may violate state, federal or local law.  Don’t ask any questions that may be related to race, color, religion, national origin, gender, disability, age or their status as a smoker or nonsmoker (only in Kentucky). 

Interview questions should be prepared in advance and should be based entirely on the ability of the candidate to do the job for which they are applying.  Make sure that the interviewers know what questions are completely off limits. 

Once the interviews are complete, have a process in place to guide the decision makers to identify the best potential employee.  Also, be aware of any required pre-employment testing or background checks that the city may have to do once an offer is made.  Ascertain ahead of time what can and cannot be done as well as what information should be gathered from the testing and used in the final decisions.

After the employee has been hired, have an onboarding process that assimilates the employee into the city work environment.  Don’t give him or her a stack of papers and leave them alone.  Make this an interactive process where they are immediately made to feel like part of a team.  Make sure that the new employee understands the personnel policies, the city ethics ordinance, and how the city’s form of government works. 

One of the most important things that a city can do to retain good employees is to make sure that anyone in a supervisory position has management skills training.  Do they know their roles and responsibilities?  Do they have effective communication skills?  Do they know how to effectively delegate job assignments?  Can they provide effective performance reviews?  This information is crucial to a successful supervisor and for happy employees.

Other important issues to consider are wage and hour laws and the misclassification of employees.  What is required in regards to meal and rest breaks?  What is considered a full-time employee?  How do you determine if the employee is entitled to overtime? What about compensatory time? Are you ready for the new overtime laws? What is considered the city’s workweek?  Do we have to pay for travel time?  (As well as hundreds of other laws!)  Failing to follow the state and federal laws, as well as the city policy, or the misclassification of city employees can cost the city in back wages, court fees, fines and penalties.  Knowing what is required of you as a city official is your responsibility.

All of these things combined put your city in the best possible position to hire and retain the best employees and to limit your liability exposure.  Being proactive on the front end will make your job as a city official a little easier, as the best employees will have to be disciplined less and the city can avoid hiring for the same positions over and over. 

If you want more information on these topics, KLC will be providing an all-day training June 1 that will offer in depth discussions of each of these topics as well as provide sample forms.  Information and registration for Part I of this training can be found on the KLC website.

For questions on this or any other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist. 


Hiring – The I-9 Form Expired March 31st
Posted on April 7, 2016 by Andrea Shindlebower in Employee Forms

HR Weekly

Hiring – The I-9 Form Expired March 31st

The current version of the Form I-9 expired on March 31, but until further notice employers should keep using the expired form until the new form is available on the U.S. Citizenship and Immigration Services (USCIS) website

On March 28, 2016, the USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment.  Once that comment period has ended more changes may be made and then it will be sent to the Office of Management and Budget for review and approval. 

The purpose of the proposed changes is lessen technical errors for which employers may be fined, and include:

  • A start over button, which will allow the user to start over more easily.
  • Instant access to the instructions through the use of hyperlinks.
  • Anti-discrimination notice, which states that employers cannot specify the forms that the employee presents for validation.
  • Each section will also have a “click to finish” button that will validate that the information has been entered correctly.
  • Will only require other last names used instead of all other names used.
  • A QR code, that can be used to streamline audit processes.
  • Automatic formatting of the SSN.
  • Immigrants authorized to work will only need to provide either their Form I-94 number, foreign passport information or alien registration number.
  • Added spaces to include the names of multiple preparers and translators.
  • A dedicated area to enter supplementary information that employers are presently required to write in the margins.

KLC will send out a notice once the new form is officially required. For questions on this or other personnel matters, contact Andrea Shindlebower Main, KLC personnel services specialist.


Drug Testing Changes for 2016
Posted on March 15, 2016 by Andrea Shindlebower in Drug Testing

Drug Testing Changes for 2016

Effective as of January 1, 2016, the minimum annual percentage rate for random controlled substances testing is 25 percent of the average number of driver positions. The minimum annual percentage rate for random alcohol testing will remain at 10 percent.

Cities that drug test CDL employees have been testing at 50 percent of the average number of CDL positions, so at this point, cities have the option of amending their policies to 25 percent or keeping it at 50 percent. 

More information from the Federal Motor Carrier Safety Administration can be found at https://www.fmcsa.dot.gov/regulations/enforcement/annual-random-controlled-substances-testing-percentage-rate-calendar-year

Questions regarding this or any other personnel policy changes can be directed to Andrea Shindlebower Main, KLC Personnel Services Specialist.


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