September 9, 2020

It’s 2020… Do you have a Clear Vision for Your Employees?

Ten Employee Handbook Updates to Consider for the New Year

Every year brings new challenges, and one of those challenges involves the employee handbook and keeping up with ever-changing employment laws. The employee handbook can be a valuable communication tool for employees to understand what is expected of them and what they can expect from the city as the employer. In addition, an employee handbook can be of vital importance in defending an employment-related claim by showing that your city had policies relating to the employment relationship in place and that the employee was aware of those policies.

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 states the policies do 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 do they create an employment contract for any period of time.  In addition, are you are aware of laws and policies that can limit at-will employment? In KRS 83A.080, nonelected officers are entitled to a written statement giving the reason(s) for removal. Do you know what positions within the city are nonelected offices?  Does your city have police officer, firefighter, civil service or other written ordinances or agreements? If so, make note of what may apply before discipline and termination.  Do you have language that limits at-will such as “for cause” or language that allows for a grievance or pre-termination hearing? If so, what process must be followed before a termination may occur?

    2. A clear, comprehensive equal employment opportunity statement that includes required language from the Kentucky Pregnant Workers Act passed in the 2019 Legislative session regarding pregnancy, childbirth and related medical conditions. An example of this language would be:

    The city provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, age, sex, sexual orientation, gender identity, pregnancy, childbirth, pregnancy/childbirth-related medical conditions, genetic makeup, national origin, disability, veteran or family status, an individual’s status as a smoker or nonsmoker, genetic makeup or any other status or condition protected by applicable local, state or federal laws, except where a bona fide occupational qualification applies. 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.  More information on the Kentucky Pregnant Workers Act can be found on the KLC blog post.

    3. An updated Americans with Disabilities Act (ADA) policy. The Kentucky Pregnant Workers Act also makes clear the right of an employee to a reasonable accommodation for pregnancy/childbirth medical conditions. Updated language could include:

      The city will offer equal employment opportunities for qualified individuals who may have a physical or mental disability, including medical conditions related to pregnancy, but who can still perform the essential job functions with or without reasonable accommodations. The city will provide reasonable accommodations to individuals qualifying under ADA only when that accommodation does not create an “undue hardship” to the city. Employers should keep in mind that unpaid time off is considered an accommodation under the ADA. If your employee has a disability and has used up all forms of paid and unpaid leave, unpaid leave may be required before ending the employment relationship.

      4.  Hiring policies that reflect the current practice and requirements under the law. As part of the hiring policy, many cities have policies requiring background checks. If you perform background checks, be aware of the Federal Credit Reporting Act requirements, as well as the requirements under KRS 335B.020 which was amended in the 2017 legislative session. Cities, as public employers, cannot automatically disqualify an applicant for employment based solely on the fact the applicant was convicted of a crime. The only exception to this is when the crime “directly relates to the position of employment sought.” Even with this exception, employers should consider whether or not the applicant has been rehabilitated, as well as the seriousness of the crime, and the time that has passed since the conviction.

      5.  An up-to-date harassment policy that includes training. Sexual harassment continues to be headline news, so be certain that your city's harassment policy is in place and condemns not only sexual harassment, but all forms of unlawful harassment. The policy should also clearly set out an easy-to-follow process for filing a complaint, anti-retaliation provisions, and a statement regarding what action will be taken if it is determined that harassment has occurred. As important as having this written policy is, the training that is provided to employees should also be a high priority. If you need training, contact KLC’s Municipal Law and Training Department.

      6.  A policy on workplace violence that condemns all threats and acts of violence, as well as provides information on the complaint process and anti-retaliation provisions. In addition, if your city addresses weapons in the workplace, make sure that this policy is based on the current state of the law. If you do not know what the current state of the law is, contact KLC Personnel Services for more information.

      7.  An explanation of the employee disciplinary procedures that will be followed in addressing disciplinary problems. This include documentation of all disciplinary action, including verbal reprimands. Employers should also be certain to include language stating that any list of prohibited behaviors is not all-inclusive.

      8.  Detailed information on the drug and alcohol testing policy, particularly if your city has safety-sensitive or federally regulated positions, such as DOT employees, police or fire.  In addition, does your policy address when post-accident testing can take place, and does it comply with state and federal law? Is it clear which positions can be included within the random testing pool? Make sure that you know the laws that apply to all of your city positions and that it is correctly reflected in this policy. And, are your employees aware of the problems that can arise if they are using a nonregulated CBD product? Do they know they will be subject to disciplinary action based on the policy if they test positive for THC, no matter if it comes from CBD oil or marijuana?

      9.  An overtime policy. Does your overtime policy require authorization before working overtime hours? Does your policy make clear when overtime will be paid? Do your nonexempt employees and their supervisors know to report time worked outside of working hours on mobile phones or laptops? Does overtime include nonworking hours such as vacation or sick time? Do you allow compensatory time, and if so, is there a written policy and agreement in place?

      Are you aware of the changes to the overtime laws that took place on January 1? If not, read our blog post on these changes and watch KLC’s on-demand webinar. Now is also a great time to be certain that employees are correctly classified as exempt or nonexempt. Review the information on the Department of Labor website, KLC blog posts and request the exempt/nonexempt checklist from KLC Personnel Services.

      10.  Leave policies in line with the changing times. Do you make employees wait a year before providing sick or vacation leave? Can you use paid leave as a recruiting tool when looking to hire new employees? Do you provide parental leave? If not, you may want to consider updating.

      Also review what the leave policies state regarding payout at termination. If your long-time employees left tomorrow how much would you have to pay? For more information read The Law and Liability of Leave Time at Termination.

      In addition to the above, an employee handbook may address any policies, rules and practices within the city, such as benefits; meal and rest breaks; dress codes; social media and internet/email use policies; sick leave donation; FMLA and safety guidelines. Make sure none of your policies are unclear and that they are followed as written. And always provide training and time for questions whenever a new policy is implemented.

      Cities should also be certain that every employee is provided with a personal copy of the employee handbook at the time of hire. Employees should 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. Employees should also be required to sign an additional acknowledgment regarding specific changes any time an amendment is made to the handbook.

      The executive authority, along with human resources, should annually review city policies to be certain they are compliant with any recent employment law changes, as well as changes in city practices. If it has been more than a few years since these policies were updated, they are not current. Checking on these matters now could prevent costly liability issues from occurring in the future.

      When updating or creating your policies, keep in mind that cities are unique. 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, Personnel Services Manager.