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What types of events qualify for leave under the FMLA? Part 1 of 2
Posted on September 21, 2016 by Andrea Shindlebower in Salary and Benefits, FMLA, FSLA

Weekly HR News – FMLA

What types of events qualify for leave under the FMLA? Part 1 of 2

Last week we looked at what is FMLA and does it apply to your city.  If FMLA does apply to your city you need to understand the five events that will qualify an employee for this type of leave.  For this article I am going to focus on the three that are not military related and next week we will look at the final two. The first three qualifying events are:

  • The birth or adoption of a child.  This applies to both male and female employees as long as the child is under the age of 18 or is incapable of self-care because of a disability.  The entitlement to leave expires twelve (12) months from the date of birth or placement of the child. However, if both parents work for the same employer, they must split the twelve (12) week allotment between them.
  • The care of an immediate family member with a "serious health condition."  Family members include a child, spouse or parent.  The term "child" can include someone other than the employee's offspring if the employee stands in the place of a parent. Likewise, "parent" includes any person who stood in the place of a parent to the employee when the employee was a child.  Finally, in 2015, the Department of Labor broadened the definition of spouse under the FMLA so that eligible employees in legal same-sex marriages are able to care for their spouse regardless of where they live. More information can be found on this in the previous article entitled Changes to FMLA Effective March 27 Regarding Definition of Spouse
  • Recovery from an employee's own "serious health condition."  The employee must be unable to perform the essential functions of the job. 
    • The term "serious health condition" for purposes of FMLA is defined as any period of incapacity that involves:
      • Inpatient care; or one night in hospital;
      • Three (3) or more absences coupled with two (2) or more visits to a healthcare provider that occur within thirty (30) days of the beginning of the period of incapacity and the first visit to the healthcare provider takes place within seven (7) days of the first day of incapacity; or more than three (3) consecutive, full calendar days of incapacity plus a "regimen of continuing treatment." The new regulations clarify here also that the first visit to the healthcare provider must take place within seven (7) days of the first day of incapacity. (Example of regimen of continuing treatment would be physical therapy);
      • Pregnancy or prenatal care;
      • Chronic serious health condition requiring periodic visits (at least two (2) visits per year) to a healthcare provider;
      • A condition requiring permanent or long-term incapacity which may not be responsive to treatment and requires continued supervision of a healthcare provider; or
      • Receiving or recovering from multiple treatments for restorative surgery after an injury or for a condition likely to result in more than three (3) days incapacity without such treatments.

For additional questions regarding FMLA or other personnel related matters, contact Andrea Shindlebower, Personnel Services Specialist.    

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What is the Family and Medical Leave Act (FMLA)? Does my city have to provide FMLA?
Posted on September 1, 2016 by Andrea Shindlebower in Salary and Benefits, FMLA, FSLA

Weekly HR News – FMLA

What is the Family and Medical Leave Act (FMLA)? Does my city have to provide FMLA?

The Family and Medical Leave Act (FMLA) is a federal law that went into effect in 1993 (29 U.S.C. § 2601-2654).  Under the FMLA, eligible employees are entitled to 12 weeks or 26 weeks of unpaid leave for certain qualifying events, which I will expand on over the next two weeks.

All public entities, including cities, are obligated to provide FMLA. 

Does this mean that all city employees are eligible to take FMLA? 

The answer to that is NO.  In order for an employee to be eligible for FMLA, the employee must meet the following requirements:

  • work at a facility with 50 or more employees within a 75 mile radius;
  • the employee must have been employed by the city for at least 12 months within the past seven years prior to the leave, unless the break in service is due to an employee’s fulfillment of military obligations; and
  • the employee must have worked for at least 1,250 hours in the 12-month period immediately preceding the date the FMLA leave begins (29 C.F.R. 825.108(d)).  

So what is the city required to do if it has no eligible employees? 

The only requirement is to post the federal FMLA poster in a conspicuous place.  The required poster and related information is provided by the Department of Labor (DOL) and can be found at http://www.dol.gov/compliance/guide/FMLA.htm#RRN.   The DOL states “All covered employers are required to display and keep on display a poster explaining the provisions of the FMLA and telling employees how to file a complaint with the Wage and Hour Division of violations of the Act. The poster must be displayed prominently where employees and applicants for employment can see it. The poster and all the text must be large enough to be easily read and contain fully legible text. Covered employers must display the poster even if no employees are eligible for FMLA leave.”

NOTE: Even if the city has no employees eligible for FMLA, keep in mind that an ADA accommodation in the form of leave time may be applicable if your city has 8 or more employees. 

So what is the city required to do if it does have eligible employees? 

If the city does have eligible employees, it must, in addition to the required poster, provide notices to eligible employees.  This notice can be in the form of the written policy, within your employee handbook. This will suffice as long as you have an acknowledgement signed by the employee that they received the handbook.  Specifically the DOL states that “If a covered employer has any eligible employees, it must also provide general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning benefits or leave rights if such written materials exist.” 

What if a city that has no eligible employees wants to provide FMLA?

Keep in mind that even if your city is not required to provide FMLA, the city can choose to offer unpaid leave.  This would be a personnel policy decision that the city would make based on whether or not the city can afford to offer this type of leave as an employee benefit and if the city would have the employee coverage required in the event that someone needed to use the leave.    

Also important to note, is that even if the city does not have any eligible employees, but there is an FMLA policy in the current employee handbook, you must follow it until removed from the handbook.  In addition to what may be in your handbook, you must also look at past practice. If the city has offered FMLA or a similar leave to employees in the past you may have to offer the leave to current employees unless you implement a policy that states otherwise.  If this is the case be certain to discuss with your city attorney as to the best way to handle this situation. 

For questions on FMLA or other personnel related matters, contact Personnel Services Specialist Andrea Shindlebower Main.

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REMINDER: New FLSA Poster Should Now be Displayed.

Weekly HR News – FLSA

Employment Law Posters – NEW FLSA Poster

The Wage and Hour Division of the U.S. Department of Labor (DOL) has released a revised Fair Labors Standards Act (FLSA) poster effective July 2016.  Cities should be sure to update their current FLSA poster with the new poster immediately.  The effective date of July 2016 is noted in the lower right corner. 

In regards to all federal posters, the 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:

http://www.labor.ky.gov/Documents/ATTY%20GENERAL%20-%20POSTER%20RELEASE.pdf

http://www.labor.ky.gov/dows/oshp/Pages/Occupational-Safety-and-Health-Program.aspx   

Kentucky League of Cities (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. 

Also, it is important to note that the regulations require that any required posters be readily viewable "in conspicuous places" and "in every establishment" in which employees are employed.

For questions on wage and hour issues or other personnel matters, contact KLC Personnel Services Specialist Andrea Shindlebower Main.    

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Tracking Time for the Exempt Employee
Posted on August 4, 2016 by Andrea Shindlebower in Employee Payments/Reimbursements

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.

 

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Record Retention Requirements - Should They Stay or Should They Go?

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.  

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Unpaid Leave as an Accommodation under the ADA
Posted on July 12, 2016 by Andrea Shindlebower in ADA

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. 

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