The Basic Responsibilities of Being an Employer - PowerPoint Presentation

The Basic Responsibilities of Being an Employer Hugh J. Cain, Attorney, Hopkins & Huebner, P.C. Brent L. Hinders, Attorney, Hopkins & Huebner, P.C. Lisa Mart, Human Resource Specialist, IMWCA Handouts and presentations are available through the event app and at www.iowaleague.org. #IowaLeague17

Which employees are subject to Governing Body Warren County Board of Health v. Warren County, 654 NW2d 910 (Iowa 2002)Board of supervisors may only have authority over direct employees. Other office holders or separate governing boards govern their own employees.Similar situation in cities with library employees or other groups controlled by separate boards or commissions. Who is the Employer?2

Hutchison v. Shull, 878 N.W.2d 221 (Iowa 2016 )When governing body is directly supervising employees, then must comply with Open Meetings Law.Action taken only through resolution, ordinance, amendment, motion. Iowa Code § 364.3(1) (cities).Closed meetings for personnel matters only when employee requests, ICA § 21.5(1)(i). However, consider ICA § 21.9 dealing with “strategy” discussions concerning employees not covered by collective bargaining agreement.3X. Open Records Law

Social Media Open Records Law, Chapter 22, doesn’t contain any exception for employee’s personal use of government computers to access/communicate on social media or private email about “public” matters.Discourage/limit personal use and warn employees that their communications on government owned computers or on private email/social media about public matters is subject to open records request absent a exception for confidentiality under 22.7.Sick LeaveUsage is likely subject to Open Records request.Clymer v. Cedar Rapids , 601 N.W.2d 42 (Iowa 1999)X. Open Records Law (Cont.)4

Salary/Wages Under Iowa law, salary and wages are not confidential information. Consider reminding employees in handbook. ICA § 22.7 (11)(a)(1).Resignation in Lieu of Termination; discharge or demotion* as the result of a disciplinary action.Any documents (i.e. letter) establishing the facts of these occurrences, the documented reasons and the rationale for the action are public records and notice must be provided to the employee that the document is subject to release under Iowa’s Open Records Law. ICA § 22.7 (11)(a)(5).*”demoted” and “demotion” mean a change of an employee from a position in a given classification to a position in a classification having a lower pay grade. X. Open Records Law (Cont.)5

Good idea to include provision in your handbook that all employees are at will, subject to termination at any time or any reason. However, remember Springer v. Weeks and Leo, 429 N.W.2d 558 (1988) and its progeny for wrongful termination.Veterans subject to Veterans Preference, ICA 35C.6 can be fired only for incompetency and misconduct. Civil service employees and most unionized employees are not at will employees. “At will” is not the same as “right to work.” Even if “at will,” if you fire for a reason that violates a liberty interest, then you will be required under the U.S. Constitution to hold pre-termination hearing.Liberty interest hearings are required for city “appointees” under Iowa Code § 372.15 and county appointees under § 331.321(3) – These are post termination hearings.Veterans must be allowed to identify themselves on job applications and prominently marked in personnel file to avoid Veteran’s Preference problems. ICA § 35C.1(2)IX. At-Will6

When does a property right exist? ContractState law right-state law defines when “property right” existsReputational injuryNot in “at-will” employment7VIII. Property Rights

Check to see if employee is subject to stand alone employment contract Iowa Code §372.15-CityExcept as otherwise provided by state or city law, all persons appointed to city office may be removed by the officer or body making the appointment, but every such removal shall be by written order. The order shall give the reasons, be filed in the office of the city clerk, and a copy shall be sent by certified mail to the person removed who, upon request filed with the clerk within thirty days of the date of mailing the copy, shall be granted a public hearing before the council on all issues connected with the removal. The hearing shall be held within thirty days of the date the request is filed, unless the person removed requests a later date8 VIII. Property Rights (Cont.)

Pre-Termination HearingPublic employees with a property right to continued employment are entitle to a pre-termination hearing. Board of Regents v. Roth, 408 U.S. 564 (1972)Cleveland Board of Education v. Loudermill, 470 U.S. 532(1985)If fail to give pre-termination hearing, then violation of 42 U.S.C. § 1983 9VIII. Property Rights (Cont.)

Civil Service LawBurmeister v. Muscatine County Civil Service, 583 N.W. 2d 877 (la Ct of App. 1995)Sieg v. Civil Service Comm of West Des, 342 N.W 2d 824 (Iowa 1983)No Pre Termination Hearing 10VIII. Property Rights (Cont.)

Reputational injuryResults if firing is for a reason that would damage reputation (i.e., theft, incompetence) Eddings v. City of Hot Springs, 323 F. 3d 596 (8th Cir. 2003) (in order to state a claim against a state employer for deprivation of a protected liberty interest in a public employee’s reputation defamation during the course of termination must be shown).11VIII. Property Rights (Cont.)

Who is a Veteran? Honorably discharged from armed forces who served during Vietnam, Lebanon, Granada, Panama, or Persian Gulf (after 08/02/90)Former members of the reserved forces who were honorably discharged after serving at least 20 years in reserve forces or active reserves 90 + days (excluding training).Iowa Code § 35.1 (2)(a).Veterans have preference for appointment over application of no greater qualification § 35C.1 12VII. Veterans Preference

Removal ProtectionRemove only for incompetency or misconduct, after hearing upon due notice upon stated charges to the Appointing Body.Right of review by Certiorari. ICA § 35C.6. Problems of “impartiality” with Board seeking a removal could be a due process violation. Burke v. City of Lansing, IA, Iowa Ct. of App., Feb. 22, 2017.13VII. Veterans Preference (Cont.)

“Incompetency” Collins v. Iowa Liquor Control Com., 110 N.W.2d 548 (Iowa 1961)A person who habitually fails to perform his work with a degree of skill or accuracy usually displayed by other persons employee in such work is incompetent. Substantial evidence showing is required.14 VII. Veterans Preference (Cont.)

“Misconduct” Edwards v. Civil Service Com., 287 N.W. 285 (Iowa 1939)Police officer guilty of misconduct not entitled to Veteran's PreferenceMisconduct found when officer violated department rules that prohibited intoxication, unbecoming or disorderly conduct, negligent of duty, and maltreatment of any person (officer, allegedly intoxicated, got into fight while off duty at a racing event)15 VII. Veterans Preference (Cont.)

Failure to give hearing is a 42 U.S.C. § 1983 violationWinter v. Cerro Gordo Conservation Bd., 925 F.2d 1069 (8th Cir. 1991)Couch v. Wilkinson, 939 F.2d 673 (8th Cir. 1991)Civil Service can trump Veteran’s PreferenceAndreano v. Gunter, 110 N.W2d 649 (Iowa 1961) (noting that special civil service statute prevails over general Veteran’s Preference statue if the two cannot be reconciled).However, due to changes to civil service law, “Misconduct” is no longer a necessary basis for termination.16VII. Veterans Preference (Cont.)

Collective Bargaining Agreement can trump Veteran’s Preference Kern v. Saydel Cmty. Sch. Dist., 637 N.W.2d 157 (Iowa 2001); Devine v. Des Moines, 366 N.W.2d 580 (Iowa 1985)However, changes to Chapter 20 no longer require a finding of “Misconduct.”Abolishment-Veteran’s PreferenceUnder Veteran’s Preference law, municipalities are not obligated to keep employees who have rights under either if it is decided in good faith, either because of financial necessity or the dictates of good business management, that the employees position should be abolished. Wood v. Loveless, 58 N.W.2d 368 (Iowa 1953)17VII. Veterans Preference (Cont.)

Exceptions to Veteran’s Preference Protections Veteran’s Preference Rights may be waived by written contract providing for at-will employment. Walk v. St. Angsar Community School District, Iowa Ct. of Appeals, December 23, 2015.Private secretary, deputy of any official or department or any person holding a “strictly confidential relation to the appointing officer” is not protected by Veteran’s Preference. ICA § 35C.8.18VII. Veterans Preference (Cont.)

Iowa Code Chapter 80F Protects police, fire, EMT, jailers, probation/parole officer, communication officer, anyone certified by ILEA.Purpose is to ensure the fair handling and investigation of complaints against police officers by:Requiring an informant to substantiate a complaint;Enabling a charged officer the power to review and to respond to any investigation of his or her conduct, including the initial complaint and statements concerning the case; and 19VI. Peace Officer’s Bill of Rights

Establishing a 10 –day appeal window after discipline, enabling an officer to remain on the job before deciding to appeal a decision concerning his or her case.Dautovic v. Bradshaw, 200 WL 1005432 – no private cause of action.20VI. Peace Officer’s Bill of Rights (Cont.)

All “public agencies” are covered “employers” and are subject to FMLA. 29 USC § 2611(4)(iii); 29 U.S.C. § 203. However, if employer doesn’t have 50 or more employees within 75 miles, then no employees eligible for leave. 29 CFR § 425.108. Also, consider seasonal and ‘volunteers’ in total number of employees.Federal regulations require a FMLA covered employer with eligible employees to include the FMLA notice in its handbook. 29 CFR § 825.300. The notice is WHD Publication 1420 – same as poster. 21V. Family Medical Leave Act (FMLA)

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FMLA poster must be posted by every covered employer. 29 CFR § 825.300. Even if employer doesn’t have eligible employee, it still should have a handbook provision that says employer is subject to FMLA, but no employee is eligible for leave. Consider also stating where the poster is located.V. FMLA (Cont.)23

Can’t automatically fire after 12 weeks absence – must still go through ADA analysis. 29 C.F.R. § 825. 702(a). FMLA policy is supposed to be in your handbook. 29 C.F.R. § 825.300.FMLA doesn’t allow for “no fault” attendance policy.29 C.F.R. § 825.220(c).Beal v. Rubbermaid, 972 F. Supp. 1216 (S.D. Iowa 1997). 24V. FMLA (Cont.)

Iowa Code § 730.5 by its terms doesn’t apply to public employees. So are there common law or statutory provisions that may justify?Pre-employment tests – not yet employee so unlikely constitutional problem.Commercial Drivers License holders – testing required under Federal law. IV. Drug Testing25

Certain types of drug testing may be allowed under two United States Supreme Court decisions: National Treasury Employees Union v. Van Raab , 489 US 656 (1989) and Skinner v. Railway Labor Executives, 489 US 62 (1989)If you decide to do drug testing, put it in the handbook.IV. Drug Testing (Cont.)26

Incorrect classification of employees Administrative Exemptions (along with passing salary threshold)Exercise discretion and independent judgmentPrimary duty must be the performance of office or non-manual work directly related to the management or general business operationExecutive Exemptions (along with passing salary threshold)Regularly and customarily supervision of two or more full-time employees or the equivalent Primary duty must be managing the enterprise or managing a customarily recognized department or subdivisionHave the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight 27III. Fair Labor Standards Act (FLSA)

Only state and local governments are allowed to use “comp time” rather than overtime. 29 USC § 207(o). There are limits on accumulated comp time, 240 hours or 480 hours for workers in public safety, emergency response, or seasonal activity, and must be paid in cash when employee leaves.Include comp time provision, the limits on accumulation, and requirement that overtime can only be worked with permission of supervisor in the Employee Handbook or other Policies.Employees who have accumulated comp time must be able and allowed to use the comp time within a reasonable period of asking. 29 U.S.C. §207 (o). 28III. Fair Labor Standards Act (FLSA) (Cont.)

Overtime Exceptions-Law Enforcement Protection There is a complete exemption from the overtime pay provisions for:“an employee of a public agency who in any work week is employed in fire protection activities or any employee of a public agency who in any work week is employed in law enforcement activities (including security personnel in a correctional institution), if the public agency employs during the work week less than 5 employees in fire protection or law enforcement activities.” 29 U.S.C §213(b)(20).If the employer has 5 or more employees engaged in such activity, then overtime or comp time must be paid. Law enforcement and fire protection employees do not need to be paid at an overtime rate unless they work in excess of 216 hours in a 28 day time period.III. Fair Labor Standards Act (FLSA) (Cont.)29

Always have a policy that forbids discrimination based on protected classifications under ICA § 216.4 or Title VII. Be sure to include outlawing sexual and other harassment. Faragher and Ellerth normally provide defense to employers for discriminatory actions where no tangible employment action is taken if:Employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and Employee unreasonably failed to take advantage of any preventative opportunities provided by the employer to otherwise avoid harm. Always include in your handbook a mechanism for an employee to complain. Have 2 routes to complain.Burlington Industries v. Ellerth, 524 U.S. 742 (1998)Faragher v. City of Boca Raton, 524 U.S. 775 (1998)II. Investigations/Complaint Procedures/EEO30

Iowa Whistleblower Rights under ICA § 70A.29 Employee protected and employer liable for reprisal for disclosure to member of general assembly, official of political subdivision, state or other public official, or law enforcement if employee reasonably believes evidence of violation of law or rule, mismanagement, gross abuse of funds, abuse of authority or substantial specific danger to public health or safety. II. Investigations/Complaint Procedures/EEO (Cont.)31

Consider including a provision telling employee to bring any whistleblowing complaints under your complaint policy. Consider having annual or periodic refreshers/training for EEO/Complaint Procedures.Remember Peace Officer Bill of Rights.Pregnancy Discrimination Act-Must treat pregnancy as favorable as similar disabling conditionsIowa Law requires that if any employer doesn’t provide pregnancy leave, then statutory minimum is 8 weeks of unpaid leave or leave for the period of pregnancy disability whichever is the shorter. ICA 216.6(2)(e). II. Investigations/Complaint Procedures/EEO (Cont.)32

Post Conditional Job Offer Medical Exams Caveat: No medical exam or health/disability questions until conditional job offer is madeEmployer does not have to prove:Job relatednessBusiness necessity All applicants in job classification must be tested, not just disabled applicants.If employer rejects applicant on account of medical exam, employer must show:Reason for rejection is job-related and consistent with business necessity or to avoid direct threat to health and safety.No reasonable accommodation available.33 I. Medical Examinations

34 I. Medical Examinations (Cont.) Post Employment Employer may examine only if: Job related, and Consistent with business necessity Employer may conduct medical exam if employee requests reasonable accommodation. Employer may also conduct medical exam: When employee wished to return to work after injury/illness When employee unable to perform his/her job. When employee is disabled. When other laws require such exam.

35 I. Medical Examinations (Cont.)Practical Steps in Conducting Medical Exams Use competent/trained physicians Physician must know your job Must have good job descriptions What do you want to accomplish If fail, Go through reasonable accommodation analysis Ask applicant how to reasonably accommodate Document everything considered and rejected Have decision reviewed Medical records are protected even if not disabled Cossett v. Minnesota Power