EXEMPT and NONEXEMPT
- Tracking time for Exempt Employees - 5/28/15
- Tracking time for Nonexmpt Employees - 6/4/15
- Exempt vs. Nonexempt Employees
TYPES OF EMPLOYMENT
TYPES OF EMPLOYEES
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 completely 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.
Preservation, Safekeeping and Retention
The last installment of this series addresses something that can be disastrous for a city. If not handled properly, manager desk files can wreak havoc with the city personnel system as well as be an issue in regards to open records requests and lawsuits.
The debate over whether manager desk files should be permitted is a long-standing issue. Personnel records, as well as any other city-generated document, should be kept at city hall as the city clerk, by statute, is the custodian of all city records. If managers do have desk files, they need to be certain that the original document is maintained by the city clerk and that only a copy is contained within their files. Managers also need to be aware that any confidential records must be securely maintained. In many cases, this requires that managers be trained on what is confidential and what is considered an open record.
Personnel policies should also address this issue and provide guidance on how the desk files will be maintained, if they are allowed at all. Explanations in regards to statutory requirements should be given so that managers fully understand the importance of these procedures.
Lastly, be aware that manager desk files are also discoverable in the event of a lawsuit. Because of this, managers need to know what is and is not acceptable in regards to their recordkeeping. A periodic review of what a manager is keeping can assist a city in addressing potential issues before they arise.
For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.
Preservation, Safekeeping and Retention, Part 3
In this, the third installment of the series, we will look at how to handle files of employees that are no longer with the city’s employment and also the hiring records of those who applied for employment with the city, but were never hired.
Terminated Employee Files
Whether the employee was terminated by the city or the employee left on their own, you will need to be aware of the requirements for these particular employee files. Many of these records will need to be maintained 60 years or more after the employee leaves employment. For answers on the retention of specific information within personnel files, go to the searchable documents at the Kentucky Department of Libraries and Archives (KDLA) website.
With the retention schedule in mind, does your city have a regular (weekly, monthly or quarterly) disposal plan for documents that have exceeded record retention guidelines? If not, it is a good time to get one in place. Who will oversee the program and verify the records have been kept according to the guidelines? How often will this be done?
Once you have determined that the employment records have met or exceeded record retention requirements, they must be disposed of via shredding, burning or otherwise fully destroying these records prior to disposal. This must be done within the destruction guidelines of the KDLA, including the completion of the Destruction Certificates.
Lastly, are any files that are related to a current or potential lawsuit maintained by legal counsel or in some other way marked as exempt from any disposal process until after the suit is closed? Keep in mind that under discovery and e-discovery laws, it is illegal to destroy documents related to a current or potential lawsuit.
These records should include any job requisitions and job postings, interview notes, reference checks, and other hiring records such as applications and resumes.
These records can be accessed by the hiring manager as well as by HR, so they should not include any information irrelevant to the job or to the hiring decision, such as protected class information, arrest records and Social Security numbers (SSNs).
Once the hiring decision has been made, any information on applicants that were not hired must be maintained for two years, or at the close of any litigation that was filed in regards to the failure to hire the applicant, whichever is longer. Also, any information retained on applicants not hired would not be subject to open records.
Next week will look at the issues with files that are kept solely by managers. For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.
Preservation, Safekeeping and Retention – Part 2
The second installment of city personnel files will look at what should be 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 form, 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, or 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 Form I-9s 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, equal employment opportunity (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 Form I-9, 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, Part 3 will look at how to handle files of employees who are no longer employed by your city and those that were not hired by the city.