David VestalGeneral Counsel

ISAC(515) 244-7181

dvestal@iowacounties.org

Managing Your Office and County Personnel

Issues

•Hiring

•Workplace Administration

•Firing

3 Areas of Employment Law

HIRING

Chapter 216:

It is discriminatory for an employer to refuse to hire any applicant because of the person’s race, color, religion, sex, national origin, ancestry, age or disability.

The key is that everything you do must be job-related -------every interview question you ask and every job qualification you establish must be justified based on the job you are hiring someone for.

Job Descriptions/Essential

Functions

Employment Application Forms:

Required by Iowa Code Chapter 35C

Advertising/Posting

§35C (1)(3) requires that public notice of all job openings must be posted at least 10 days prior to the deadline

Veteran’s Preference –

Application forms must contain an inquiry into the applicant’s military service for purposes of administering the veterans preference law.

Nepotism –

Under Iowa Code Chapter 71 you can’t hire a relative without the advance approval of the board of supervisors

Residency Requirements -

The law is silent on whether counties can use them.

Confidentiality of Job Applications:

An Iowa Supreme Court decision held that job applications are confidential unless the applicant consents to public disclosure.

Drug Testing-

Counties are free to establish their own drug testing procedures, and they are only limited by what the federal constitution prohibits

ADA and Job Interviews – The ADA allows an employer to ask about an applicant’s ability to perform job-related functions.

•Are you disabled?

•Have you had any injuries?

•Are you taking any prescription drugs?

•Have you ever filed a worker’s comp claim?

Do not ask:

•Can you perform the functions of this job?

•Can you meet the attendance requirements of this job?

•How many days did you take leave last year?

You can ask:

If the person is obviously disabled or says that he or she is disabled, you can

•Ask only that one applicant to describe or demonstrate how he would perform the essential functions of the job

•Discuss what would be a reasonable accommodation

Do Not Ask

•How the person became disabled, or the prognosis

•About the nature or severity of the disability

Post-offer medical exam -

The ADA requires that any medical examination of the applicant take place after you have offered him a job, and then he gets the job unless the medical exam reveals a job-related problem

Confidentiality: employers are restricted from informing co-workers of accommodations made for disabled employees.

The ADA’s confidentiality requirement allows only three exceptions:

1)management personnel who have to make the reasonable accommodations;

2)fire and safety personnel; and

3)government officials checking compliance with the ADA.

Negligent Hiring:

Iowa courts now recognize that an employer can be sued for negligent hiring.

I-9’s

Within 3 days after hiring someone an employer must verify his eligibility to work in this country, and the way that is done is by filling out an I-9 form and reviewing the employee’s proof of employability.

Under Iowa law, a county must also report any new hire to the centralized employee registry within 15 days. The purpose of the law is to allow the state to track workers who have child support obligations.

WORKPLACE ADMINISTRATION

Wage Payment –

Iowa Code Chapter 91A governs payment of wages by employers to employees. When a person is terminated, the law requires employers to pay all wages earned by the employee by the next regular payday.

Personnel Files

Under Chapter 91B, an employee has a right to examine and copy her personnel file, including performance evaluations, disciplinary records, and other information concerning employer-employee relations. There are three conditions on this access:

1.The employer and employee must agree on the time when the file will be made available, and a representative of the employer can be present;

2.An employee shall not have access to any written employment references; and

3.An employer may charge a reasonable fee for each copy made.

Job performance evaluations are exempt from disclosure under the exception in the public records law for “personal information in confidential personnel records.”

The Iowa Supreme Court says that compensation records of individual employees are public records. Gender, address, and birth date information are not.

Internet Policies 1)Computers are solely or primarily for county business.

2)Absolute right to review and disclose all matters sent over the system.

3)Warn that the system should not be used to communicate any improper communications.

Smoking in the Workplace

Iowa law prohibits smoking in public places except in designated areas. That is Iowa Code section 142B.2(1). Smoking areas may be designated by the persons having custody or control of the public places.

Family and Medical Leave Act

The law entitles employees to up to 12 weeks of unpaid, job-protected time off a year for a serious health condition, to care for a sick family member or to have a child.

FMLA only applies to workers who have been employed by you for 12 months and who have worked 1,250 hours in the last 12 months (that’s roughly 24 hours a week).

FMLA only applies in the case of a “serious health condition,” which is defined as an illness or injury that involves inpatient care, a period of incapacity lasting more than three days, any incapacity due to pregnancy, a chronic serious health condition, or multiple treatments by a health care provider.

Pregnancy

Iowa Code section 216.6 prohibits employers from basing hiring and firing decisions on an applicant’s or employee’s pregnancy.

Military Service

Under Iowa Code section 29A.28, if your employee is in the National Guard or any other branch of the military, and are ordered to active service, the employee must be given a leave of absence for the period of active service.

There is also a federal law which took effect in 1994 which requires that you reemploy and employee who leaves for extended military service. Any such employee is entitled to a total of five years of military leave.

Sexual Harassment

Two forms: 1)quid pro quo harassment: taking adverse employment action against someone for refusing to submit to a supervisor’s sexual demands; and 2)hostile environment: sexual insults and jokes or unwelcome physical contact.

The Supreme Court in 1998 announced that employers are always liable for sexual harassment by supervisors.

How an employer responds to claims of sexual harassment is often determinative of whether liability will be imposed. Simply having a policy is not enough.

You must raise this issue with your employees right from the start -- at orientation tell them that sexual harassment is not permitted.

Employment Discrimination

Generally, counties cannot make employment decisions which discriminate against individuals based on their race, color, religion, sex, national origin, age or disability.

Equal Pay

The federal Equal Pay Act prohibits employers from paying unequal wages for equal work in jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, unless the difference in pay is based on seniority, merit, productivity or any other factor except sex.

Age

The federal Age Discrimination in Employment Act makes it unlawful for any employer to make any employment decision based on an individual’s age, and it protects persons 40 years of age or older. The Iowa version protects anyone over 18.

Discussing Employment Matters with the Board of

Supervisors

Under the Open Meetings law, a board of supervisors can go into closed session to discuss a particular employee only when that employee requests a closed session, and only if keeping the meeting open would irreparably harm her reputation.

ENDING THE EMPLOYMENT RELATIONSHIP

Suspension of Employees

No pre-suspension hearing required

Employment at Will

Employment at will state. An employee may be discharged at any time for any lawful reason.

Exceptions include:

1)an express contract

2)a collective bargaining agreement

3)a employee handbook

There are also statutory limits on discharge. You cannot fire someone:

•For reporting OSHA violation.•For reporting for jury duty, •For having their wages garnished, •For being a whistleblower, •For being pregnant,•For meeting their military obligations or •For being absent in order to attend a drunk driving course.

There are also constitutional limits on discharge. Someone cannot be fired generally for things that they say as a public employee, because they have a First Amendment right to say whatever they want.

If fired for reasons of dishonesty or immorality, a person has a right to a name-clearing hearing, which can be held after the termination

Judicial Limits on Discharge

The Iowa Supreme Court has announced that employees can’t be fired for reasons that violate public policy, such as filing a workers comp claim, filing for unemployment benefits, or reporting suspected child abuse.

There are three questions you always want to ask prior to terminating someone:

1)were any promises made about the duration of employment, such as in an employee handbook;

2)is the proposed termination supported by the employee’s record, personnel file and performance appraisals?; and

3)how would a neutral third party react to your decision to terminate the person?

Elements of a progressive discipline system include:

•adequate notice of the employer’s work rules;•timely and fair investigation of incidents or charges;•even-handed application of work rules; and•penalties in proportion to the offense and the employee’s work record.

Many progressive discipline programs employ a four-step approach:

Step One: is an oral warning with a note in the file;

Step Two: is a written warning with copies to the employee and entered in the file;

Step Three: is a disciplinary suspension of several days without pay, along with written warning that improvement is required within a stated period of time or further discipline may result; and

Step Four: if the required improvement is not evident within a stated period of time, such as 30 days, the employee is terminated.

Giving References

Iowa Code section 91B.2 grants “job reference immunity” to those that provide work-related information about a current or former employee. The immunity does not apply if the reference is provided unreasonably or with malice.

COBRA

If an employee of yours loses her job for any reason other than gross misconduct, she must be allowed to continue her group health insurance benefits for up to 18 months on a self-pay basis.

Unemployment Compensation

Under Iowa Code chapter 96, any unemployed person is eligible for benefits unless 1)it was a voluntary quit, which means that the employee left work voluntarily without good cause attributable to the employer; or

2)she was discharged for misconduct, meaning a deliberate act or omission which constitutes a material breach of the employee’s work obligations.