Weekly HR News –Leaves of Absence
Comprehending Comp Time
With winter weather looming, along with the extra work it brings, many city employees will be working longer than normal schedules. The question then becomes whether or not a city can allow its employees to earn compensatory time, also known as comp time.
In years past, compensatory time was only an option for counties. Then in 2009, KRS 337.285 was amended to permit cities and their nonexempt city employees to agree on the earning of compensatory time in lieu of overtime pay.
The statute does set some guidelines for the allowance of comp time:
- It only applies to non-exempt (hourly) employees; however, employers can provide comp time as a fringe benefit to exempt employees through policy and it would not have to follow this statute.
- The request to accrue compensatory time must be made in writing, freely and without pressure or suggestion by the employer, before performance of the work.
- If authorized in writing by the employer, an employee may accrue compensatory time in lieu of overtime pay at the rate of not less than one and one half hours for each hour the employee is authorized to work in excess of 40 hours in a work week.
- The maximum number of compensatory hours that may be accrued is 480 for city employees engaged in a public safety, emergency response or seasonal activity. For employees engaged in all other work, 240 hours are allowed. Any hours over these maximums must be paid to the employee in overtime compensation at the regular rate earned by the employee at the time the employee receives the payment. In addition, a city can set the maximum accrual hours at less than the statutory maximums.
- A city employee who requests the use of compensatory time must be allowed to use the compensatory time within a reasonable period after making the request, if use of the compensatory time does not unduly disrupt operations of the employer. Mere inconvenience to the employer is not a sufficient basis for denial.
- An employer cannot use compensatory time as a means to avoid statutory overtime compensation. Therefore, an employer cannot pressure an employee to accept more compensatory time than the employer can realistically expect to be able to grant within a reasonable period.
- Upon termination of employment, all unused accrued compensatory time earned by nonexempt employees must be paid at a rate of compensation not less than the average rate received by the employee during the last three years or the final regular rate received by the employee, whichever is higher.
For additional questions regarding comp time for exempt and nonexempt employees or for sample policies or the required agreement, contact personnel services specialist, Andrea Shindlebower Main, at firstname.lastname@example.org
Those two words have dominated the news both at the state and national level over the past few weeks. In recent years, large corporations such as Chipotle, Uber, Fox News Network and many others have publicly settled with employees for millions of dollars. The rules seem so simple, but the real world often complicates what should be black and white. We are all then left to navigate the world of gray that remains. In general, this onslaught of accusations can be seen as a wakeup call for employers to dust off the personnel policy binder and review what both your policies and applicable laws say about sexual harassment in the workplace.
For Kentucky cities the legal framework for sexual harassment comes primarily from two sources- Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act. Each of these bodies of law prohibit discrimination and harassment on the basis of a person’s gender (among other protected classes). While sexual harassment can be a wide spectrum of behaviors, three factors must be present. The conduct must have been unwelcome or unwanted, sexual in nature or based on the person’s gender and there must be an impact on the employment relationship of the person involved. Keep in mind that “employment relationship” can mean any aspect of employment including hiring, promotion, compensation, work assignments, performance evaluations, fringe benefits, etc.
Each year in the United States approximately 13,000 sex based discrimination complaints are made to the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal enforcement agency for Title VII of the Civil Rights Act, which provides protection for a variety of protected classes, including gender/sex. However, that number represents just a drop in the illustrative “bucket” for the actual rate at which sexual harassment occurs in the American workplace. Studies reveal that only 19% of women and under 15% of men who experience sexual harassment ever make a formal complaint. Despite the recent wave of news reports, most people who suffer sexual harassment at work do not report the behavior. There is a fear of being branded a trouble maker, fear of retaliation for the complaint and in some cases people are embarrassed of the behavior or what has happened to them. It is important to have clear personnel policies that provide understandable procedures for reporting harassment. This measure can help protect the employer from liability and insure that employees have a safe work environment.
When you are reviewing a case of alleged sexual harassment it is important to take note of all the key players in the situation. You will have the harasser, or the person who has allegedly committed the act of harassment. Remember, this can be an employee, supervisor or a third party who is not an employee at all, such as a citizen or a vendor. The employer responsibility to provide an environment free of harassment is not limited to just control of employees, but rather requires proactive steps to prevent any individual from harassing employees. You will also have a victim or the target of the harassing behavior. Keep in mind that bystanders can make allegations of sexual harassment and if the behavior is severe and pervasive enough that it alters their employment conditions, they too can be protected under Title VII. The final character in any sexual harassment scenario are the administrators and supervisors involved. This group creates, implements and enforces workplace policies of zero tolerance, provides training for employees and responds to reports of inappropriate behavior.
There are two forms of sexual harassment, but the behaviors that constitute harassment can be varied. The first form of sexual harassment is quid pro quo harassment, which is Latin for “this for that.” This is an exchange between the harasser and the victim. Typically, this harassment is committed by a supervisor against a subordinate employee because only someone with authority can offer a workplace benefit or perk in exchange for a sexual request. The second form of sexual harassment is hostile work environment and is much more subtle. This requires proof of an established pattern of harassing behaviors which focuses on the gender, physical attractiveness, sexual activities or other gender based issue of an employee. Such conduct must be unwelcome and severe and pervasive enough to alter the conditions of employment, to violate the law. When analyzing whether or not a situation rises to the level of hostile work environment it is important to consider the frequency and severity of the conduct, whether the conduct is physically threatening and/or intimidating or merely an offensive utterance. You also want to consider whether or not the behavior unreasonably interferes with the employee’s ability to do his or her job.
Most all of us joke around with our coworkers. When discussing sexual harassment it is inevitable that someone will ask what the “line” is that separates friendly office joking and banter from sexual harassment. This all depends on a thorough analysis of the factors above and what standards of behavior your personnel policies prescribe for employees.
Transparency and accountability are values that promote employee morale and productivity. Make sure that your personnel policies are updated and reflect the core belief of your agency that all people should feel safe at work from sexual harassment and all other forms of workplace harassment and discrimination. To schedule sexual harassment prevention training for your city or for questions on this or other personnel matters, contact Personnel Services Attorney, Jessica Miller.
Weekly HR News - Hiring Practices
Employment Law Posters
All required federal and state employment law posters can be downloaded and printed at no cost to employers. For 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 for free on the Kentucky Labor Cabinet webpage.
Kentucky League of Cities (KLC) strives to notify cities of new poster requirements and changes as they occur; however, all cities should check the above links and the federal and state Department of Labor websites frequently as the statutory laws and federal regulations can change. Employers are also required to hang posters in readily viewable "conspicuous places" and "in every establishment" in which employees are employed.
For questions employment law posters or other personnel matters, contact KLC personnel services specialist, Andrea Shindlebower Main.
Weekly HR – Workplace Violence
Domestic Violence and the Workplace
October is Domestic Violence Awareness month and if you are wondering why this should be a human resource topic, here are some statistics:
- Domestic violence is one of the leading cause of violence in the workplace with at least one in five employees having been the victim of domestic violence (U.S. Centers for Disease Control and Prevention (CDC)).
- Homicide is currently the fourth leading cause of fatal occupational injuries and it is the second leading cause of death for women in the workplace (Occupational Safety and Health Administration (OSHA)).
- 75% of domestic violence victims face harassment from intimate partners while they are at work (Family Violence Prevention Fund).
- 27% of all violent events in the workplace, including workplace shootings, are tied to some form of domestic violence (U.S. Department of Labor).
- 96% of domestic violence victims experience problems at work due to abuse (American Institute on Domestic Violence). This can include situations where the victim is either prevented from going to work by the abuser or they are absent due to injuries or mental issues caused by the abuse. The time away from work can be broken down as follows:
- 56% of victims are late
- 28% of victims leave early
- 54% of victims miss entire days
- The CDC states that these particular absences cost employers at least $2 billion in lost productivity annually and employer health care costs related to domestic violence are more than $4 billion a year.
- Employers may also face liability based on how they react to domestic violence in the workplace:
- Employers may violate discrimination laws if they take adverse actions against victims. For example, an employer may face liability if a female victim of domestic violence is disciplined for being absent while another employee is not. Or the employer takes adverse action against a female victim that uses FMLA or leave as an accommodation under the ADA for medical reasons related to domestic violence.
- Although OSHA does not have specific standards for domestic violence, they can cite employers under its “general duty clause,” requiring employers to provide a safe workplace, including any dangers related to domestic violence.
For these reasons and more, employers should have workplace violence prevention policies and a plan that specifically addresses domestic violence in the workplace. Your workplace violence policy should define domestic violence and provide information for recognizing signs of victimization. Signs of domestic violence can include:
- Frequent or unplanned leave
- Change in job performance
- Unexplained bruises or injuries, often attributed to “falls,” “being clumsy,” or “accidents”
- Dress that is inappropriate (i.e. long sleeves in the summer)
- Sudden change of address
- Isolation, unusual quietness, or avoiding others
- An unusual number of phone calls or emails from a current or former partner, strong reactions to those calls, and reluctance to respond to phone messages
- Disruptive personal visits to the workplace by present or former partner
- Anxiety and depression
- Drug and alcohol dependence
In addition, the policy should provide response requirements and available information regarding assistance for an employee experiencing domestic violence. Employers should also be certain that all supervisors are trained in how to handle these situations, which may include:
- Providing a picture of the perpetrator to human resources
- Identifying an emergency contact person
- If absence is necessary, the employee should be clear about their return to work plan
- Save threatening e-mail or voice-mail messages for future use in possible legal situations
- Arrange for priority parking
- Screen calls and have employee’s name removed from automated phone directories
- Limit information disclosed by phone about employee
- Relocate workspace to a more secure area or another site
- Put the employee in contact with your city employee assistance plan and/or the National Domestic Violence Hotline at 1-800-799-SAFE (7233)
- Work with local law enforcement as needed and encourage employee to do the same
- Arrange flexible work hours so employee can seek protection, go to court, look for new housing, arrange child care, etc.
Don’t let your workplace become another staggering statistic. Be proactive in implementing the necessary measures to keep all your employees safe. If your city needs sample policies or training on workplace violence or any other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.
Weekly HR News - Human Resources Audit
Five Ws to Keep Your City in Compliance
Who needs to do an HR Audit?
HR personnel as well as the executive authority for the city must be certain that HR audits are being done. Persons within these positions are on the frontlines of all the personnel action and must be a knowledgeable resource for the employees and management.
Why do you need an HR audit?
Federal, state and local employment laws can be very complex. Violations of these laws, even when unintentional, can lead to lawsuits, fines, bad publicity and even employee frustration. Issues also present themselves when you have in place rogue management, or those who do not have sufficient training to handle employment issues as they arise. Eliminating those risks is a significant responsibility of HR.
When should the HR audit occur?
Typically an HR audit should be done on a yearly basis; however, some cities find that several mini-audits throughout the year make this task less cumbersome. Changes in the law occur annually, so in order to maintain legal compliance the city’s policies and procedures need to be updated at least that frequently. Making the time to do a complete HR audit not only ensures compliance with the laws, but it also provides opportunities to improve the effectiveness of the city’s HR practices such as employee performance and engagement. In addition, if there is an issue with employees or management, discovering these problems in a timely manner can keep them from spiraling out of control.
What should be audited?
The first thing any city should do when completing an HR audit is to create and review a comprehensive checklist. At the very least, the city should review the following areas:
- Employment Law Updates (federal, state and local)
- Do you have I-9 Forms on all employees? Are you using the most current form dated 7/17/17?
- Discipline Procedures and Documentation
- Equal Opportunity
- Wage and Hour Administration
- Job Elimination/Separation Documentation
- Hiring Process
- Benefits Administration, ERISA and COBRA (or State Continuation Coverage if less than 20 employees)
- Personnel Files and Records
- Americans with Disabilities Act (ADA)
- Policies and Procedures
- Workplace Harassment and Sexual Harassment
- Family Medical Leave Act (FMLA)
- Uniformed Services Act (USERRA) and Kentucky Military Law
- Background Investigations
- Drug and Alcohol Testing
However, it isn’t enough to check these items off your list. Even if all of your policies are completely up-to-date and legally compliant, if city officials and supervisors do not practice what they preach, the liability risks increase significantly. For example, even if you have a legally compliant workplace harassment policy, it will not create a respectful workplace. If the executive authority or supervisors ignore or allow disrespectful behavior, the policy is not worth the paper on which it is written and can lead to costly litigation. As part of this process, you have to be certain that the policies are being followed as they are written. Do this by auditing employees for their feedback and reviewing any employee complaints that may have been filed to look for holes in the process.
Where do you take the results?
The results should not sit on the shelf. Once any potential issues have been identified, be certain that the executive authority in your city is aware of the issues. The executive authority must then make changes to city policies or HR processes to get your city into compliance. Do this by updating personnel policies and by providing training to employees, supervisors and management personnel. Especially target those in management who are not following procedures. Emphasize the fact that any employee or supervisor not following the policies and procedures will be subject to discipline, including termination from employment.
No matter what your HR audit looks like, it is important to engage in continual observation and improvement of the city's policies, procedures and practices. By doing this, you will ensure that your city never ceases to improve.
For a sample HR Audit Checklist or questions on this or other personnel matters, contact personnel services specialist, Andrea Shindlebower Main.
Weekly HR News –
Municipal Employee Handbooks
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.
- A clear, comprehensive equal employment opportunity statement that includes state and federal law requirements.
- A policy regarding how an employee that may need an ADA accommodation would make that request, and that the employee must initiate the request for a possible accommodation.
- A 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. In addition, there should be provisions that provide protection for an employee that is retaliated against based upon the filing of a complaint.
- An explanation of the employee disciplinary procedures and examples of 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. In addition, make sure that the examples of behavior include a disclaimer that they are not an all-inclusive list of the items that can result in disciplinary action.
- Information on the applicable forms of leave that the city provides, or is required to provide by law. The policy should include information on the process for requesting leaves and any requirements such as forms that must be filled out and any applicable timeframes.
- A policy as to what employees are entitled to overtime and when overtime is paid. This policy should also include a requirement that employees must request permission from the supervisor before the time is worked. In addition, include information on work that is done “off the clock” and how and when this time is compensable for nonexempt employees.
- Information on the privacy protection requirements that are found in 61.931- 61.934.
In addition to the above, an employee handbook may address any and all policies you may have, such as: hiring procedures, time cards, compensatory time, payroll deductions, personnel files, job references, social media and other computer usage issues, benefits, dress codes, alcohol and drug use policies, expense reimbursements, reporting work place accidents, return to work requirements and safety guidelines.
To be effective, cities should be certain that every employee is provided with a personal copy of the employee handbook at the time of hire, as well as the city ethics ordinance, if it is applicable to city employees. Employees 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 and maintained pursuant to the Kentucky Department of Libraries and Archives Record Retention Schedule. 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.
In addition to providing an employee a copy of the handbook, employers should provide training for employees on any changes to the policies and allow time for them to ask any questions that they may have regarding the handbook. Maintaining proof of that training and who was in attendance, can provide excellent proof in the event that an employee claims that they were not aware of something contained within the handbook.
The executive authority and/or human resources person should continually 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. 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 making sure your policies are legally compliant, plan to attend the KLC Conference, Wednesday October 4th at 10:45 for an informative session on this topic. If you can’t make the conference, or if you would like to discuss a review of your current policies contact personnel service specialist, Andrea Shindlebower Main for details on this service.