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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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Municipal Employee Handbooks - 2016

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:

  1. 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.

  1. 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.   

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Employment Law Posters – Increase in Penalties and New FMLA Poster- Fines will be doubled after July 5

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.    

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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.

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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.   

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

Weekly HR News – ALERT! CORRECTION!

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.   

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