Ask Mallory: Frequently asked employment law questions answered
By: Mallory Floyd
RMS Employment Counsel
In my role as RMS Employment Counsel, I view one of my duties as the “employment law hotline.” If you have an issue with an employee or a question regarding employment law, I am available for a call to work through it with you. In fielding these calls, I often observe recurring issues and questions across numerous counties. That’s right. You’re hearing it straight from me: you are not alone, and you are not the only elected official dealing with these issues.
As we cross the half-way mark of another year, counties are evaluating their policies and procedures. Many are looking to make improvements now to ensure they are maintaining the best business practices and complying with state and federal laws before entering into another new year. Here are some of the most frequently asked questions related to personnel policies and procedures:
Q: The Quorum Court is reviewing our personnel policy. Do you have any suggestions on changes?
A: The AAC provides a Model County Personnel Policy as a free member benefit to counties. Counties can edit or change this policy at their discretion to fit the operational preferences of the county. In order to provide the maximum amount of assistance, the policy covers topics that are defended and indemnified by the General Liability Protection Agreement (such as constitutional rights and Title VII rights) as well as many topics that fall outside of the GLPA program but that are relevant to a county’s day-to-day operations (such as holidays, FOIA, county gifts, group insurance, inclement weather leave, etc.). For those topics, we do our best to provide sample language in the policy to ensure our members are aware of the topic/area of law and the need to address it through policy, but it is left to the county to decide what further language, if any, is needed. If you would like a copy of the most recent edition of this policy, please email me at mfloyd@arcounties.org.
Q: I want to create an executive office policy for my office. What should I include?
A: Executive office policies are intended to address the day-to-day administration of your individual offices. Your executive personnel policy does not replace the county’s personnel policy that has been adopted by the Quorum Court. Further, your executive personnel policy cannot contradict the county’s policies and procedures that apply equally to all county employees. Topics you should consider addressing in an executive personnel policy include, but are not limited to, absenteeism and tardiness, hygiene, dress code, professionalism and civility, cell phone and internet usage, confidentiality, and call-in procedures. I have model language for each of these areas and others. To get this model language, please email me at mfloyd@arcounties.org.
Q: I want to start conducting performance evaluations for my employees. Where do I start?
A: Implementing some form of work performance evaluation is a great way to keep tabs on whether your employees are performing their essential job duties to meet the department’s expectations. Evaluations also notify employees of any areas in which they need to improve and create documentation when an employee fails to meet your standards. When implementing performance evaluations, you first need to create an evaluation form that contains the areas most applicable to your department, and then be sure to use it equally across all employees. Common areas include, but are not limited to:
Attendance
Punctuality
Attitude
Conduct
Initiative
Leadership
Quality of work
Knowledge of the position
Dependability
Cooperation
Problem-solving
Organization
Customer service
Written communication
Oral communication
Adaptability
I highly recommend you reach out to your fellow elected officials/counties to see what they have found to work well for them. You may not need to reinvent the wheel.
Next, determine the frequency in which you plan to evaluate your employees. Is this an annual review? Do you want to do this quarterly? Whatever you choose, make sure you stick to it. Place it on your calendar so you get a reminder that it is time to do evaluations. All that is left to do is conduct your evaluations. When conducting your evaluations, the information you include on your form(s) should accurately reflect your employee’s performance in each area.
Using incorrect information may create an unwanted situation down the road.
Q: What are the laws surrounding a post-accident drug test?
A: For employees who fall under the Department of Transportation’s (DOT) regulations, you are required to comply with statutory post-accident drug testing requirements. Please consult your county’s civil attorney for information on this statutory duty. For all other employees, including those employed in non-DOT, safety-sensitive positions, the Fourth Amendment requires that you have reasonable suspicion to believe the employee is under the influence before conducting a post-accident drug test.
In addition to questions related to county personnel policies and procedures, questions related to the Family Medical Leave Act (FMLA) continue to come in at a steady rate. One “hot topic” under FMLA is when leave should be designated as FMLA leave for pregnancy-related absences. Another FAQ is related to the use of any accrued paid time off before FMLA. Answers to both of these questions can be found below.
Q: Can an employee use their accrued paid time off before they are put on FMLA?
A: NO! This is an issue that I frequently see in counties across the state. Please note that the Department of Labor has stated that neither the employer nor the employee may delay designation of FMLA-qualifying leave as FMLA leave. Therefore, permitting an employee to use their PTO before designating their leave as FMLA leave is a violation as it results in a delayed designation of FMLA leave.
Q: I have an employee who is pregnant. When does a pregnancy related absence count towards FMLA?
A: Under FMLA, an expectant mother is entitled to FMLA leave for the following reasons:
The employee’s incapacity due to pregnancy
Prenatal care
The birth of the child
The employee’s own serious health condition following the birth of the child
To be with the healthy newborn child (bonding time)
Circumstances may require that FMLA leave begin before the actual date of a child’s birth. This would be the case with prenatal care/appointments or if her condition makes her unable to work. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. For example, a pregnant employee may be unable to report to work because of severe morning sickness. Please view 29 CFR 825.120.
If you need clarification on the information contained in this article, or if you have any other questions, please contact me at mfloyd@arcounties.org or at 501-604-8677.
