Iowa Extension Council Association

1. Iowa Extension Council Association EMPLOYMENT LAW UPDATE 2019 Annual Conference Employment Law & Practices March 30, 2019

2. Presenters Terry Maloy Executive Director Iowa Extension Council Association Phone: (641) 226-1541 Email: maloy@iastate.edu Jaki K. Samuelson Kay E. Oskvig Whitfield & Eddy, PLC 699 Walnut Street, Suite 2000 Des Moines, IA 50309 Phone: (515) 288-6041 Email: Samuelson@whitfieldlaw.com Oskvig@whitfieldlaw.com

3. OUTLINE • Hiring and Nepotism • Personnel Files • Performance Issues and Documentation • Harassment and Investigations • Attorney-Client Privilege • Open and Closed Meetings • FMLA, Leave and Paid Time Off

6. HIRING AND Nepotism

9. COUNCIL DUTIES REGARDING HIRING Iowa Code § 176A.8(5) • Employ all necessary extension professional personnel

10. Employ such other personnel as it shall determine necessary for the conduct of the business of the extension district

11. Fix the compensation for all such personnel in cooperation with the extension service and in accordance with the memorandum of understanding entered into with such extension

12. Iowa Code Chapter 71: Nepotism • If within the 3rd degree of consanguinity – can hire only with approval of the Council. • The related Council member should not participate in any vote, decision or discussion concerning the Council member’s relative. • Exception for employees who receive less than $600 compensation per year.

14. Iowa Code Section 71.2Payment prohibited No person so unlawfully appointed or employed shall be paid or receive any compensation from the public money and such appointment shall be null and void and any person or persons so paying the same or any part thereof, together with their surety, shall be liable for any and all moneys so paid.

15. CHAPTER 2: EMPLOYMENT ADMINISTRATION POLICY: Council Responsibility Regarding Employment No employee of the _________ County Extension Council shall work in the position where he or she is supervised by a person with whom the employee is cohabitating, in a committed relationship or to whom the employee is related, either by blood or marriage, except as may be approved in writing by a vote of a majority of Council Members. Persons with such relationships or who, in the course of employment, develop relationships covered by this policy shall inform the Personnel Committee of the existence of the relationship if their employment will involve a supervisory relationship between the two employees. The Personnel Committee will evaluate whether assignments can be reconfigured to avoid the supervisory relationship. If the supervisory relationship cannot be avoided, existing employees shall be given the initial opportunity to decide who will leave the Council’s employ, if so required following consideration by Council, as noted above. With respect to any Council or Council committee‘s decision with respect to an employee with such a relationship to a Council Member, the related Council member shall not be allowed to vote on the decision.

16. PERSONNEL FILES

19. PERSONNEL FILES • Iowa Code 91B • Employee has a right to see and receive a copy of file, including performance evaluations and disciplinary records (not including employment references written for employee) • File review is subject to employer and employee agreeing on a time and a representative of the employer may be present • Non-employees: not required to provide a copy, but may be the correct thing to do • Can charge a reasonable fee for copying

20. CONFIDENTIALITY • Personnel Records/Information • Medical Information!!! • Individual Disciplinary/Performance Issues • ONLY THOSE WHO NEED TO KNOW • 2018 Open Records law exception

21. OPEN RECORDS • Personnel files are not open records EXCEPT • The fact that an employee resigned in lieu of termination, was discharged, or was demoted “as a result of disciplinary action” and the document reasons for the action are subject to open record requirements AND • If the County Extension takes action that will result in such open records, it must “prior to taking such disciplinary action… notify the employee in writing that the information placed in their personnel file may become a public record.”

22. BEST PRACTICE – THREE PERSONNEL FILES • Confidential personnel file containing sensitive information • Birth date • Marital and dependent information • Protected class information • Social security numbers • I-9s and related documents • Background checks

23. 2. Medical File • FMLA leave documentation • ADA accommodation documentation • Work comp documentation • Doctor’s notes regarding absences • Health insurance applications that disclose medical information • Drug screens (if employer drug tests)

24. 3. Basic personnel file • Application, resume, interview notes & other hiring documents • On boarding documents (Handbook acknowledgement, check lists) • Job and compensation history • Training records • Performance reviews • Counseling/disciplinary documents

25. Files regarding employee complaints investigations, should be maintained by the Personnel Committee and not included in the employee personnel file

26. All personnel files should be in a locked file with limited access by only: • HR Director or Office Manager • Personnel Committee Chair

27. Performance issues anddocumentation

31. SUPERVISION AND DISCIPLINE OF COUNTY EXTENSION EMPLOYEES • LEVEL 1 – Office Manager or Director - Day-to-day issues and disciplinary matters • LEVEL 2 – Personnel Committee - Interviews and evaluations (may delegate) - Investigations, complaints, certain disciplinary matters • LEVEL 3 – Council - Votes on Personnel Committee Recommendations on hiring, terminations, and compensation - Handles appeals and generally sets policy

32. MANAGING AND IDENTIFYING ISSUES • Employees can’t perform to expectations if they don’t know what they are • It is harder to prove what you don’t document

33. JOB DESCRIPTIONS • Set expectations • Update as jobs evolve

34. TRAINING • Provide appropriate training at outset • When experiencing performance issues • Periodically regarding: • Harassment/discrimination • Safety • New policies/procedures • Workplace changes • Specific job changes

35. FEEDBACK • Provide regular feedback • Day-to-day • Informal discussions with supervisors • Formal evaluations

36. FEEDBACK, CONT. • Communication – discipline or corrective actions should never come as a surprise • Consistency - For individual employee - In comparison to other employees • Documentation • Confidentiality

37. Poor Performers Communication Consistency Documentation Confidentiality Fairness

38. Bad Behavior Communication Consistency Documentation Confidentiality Fairness

39. Bad Behavior Absenteeism • Policies • Document • Set expectations • FMLA/ADA issues

40. Harassment/Discrimination • Heightened level of employer responsibility, Title VI, ADA, ADEA, state laws • Take all complaints or observations seriously • Investigate and take appropriate disciplinary action

41. Be sensitive to possible impairment issues • Medical issues, FMLA/ADA protections • Drug/alcohol issues

42. Discipline • Consistency • Aligns with severity/repetitive nature of conduct • Ways to address issues: - Informal discussions/day-to-day feedback - Verbal warnings (documented), written warnings, probation, suspension, termination - Performance evaluations

43. Effective Verbal/Written Counseling/Discipline • Timely • Describes the issue/problem (behavior) • Explains what must be done to remedy it • Identifies the consequences if the issue continues/recurs • Sets any appropriate timelines for improvement • Signed by employee • Provided in a timely manner • Retained in the file

44. Terminations • Evaluate risks and seek legal advice when needed. • Similar issues and infractions should be treated the same. • Document reasons in the personnel file. • Remember open records amendment requirement regarding documentation to provide notice to employee prior to termination.

45. Termination (continued) Termination meeting • More than one employer representative present • Short explanation of reasons – don’t debate the issues • Explain procedures for removal of possessions, benefit continuation • Usually make it effective immediately

46. Termination (continued) • Accompany the employee to pick up possessions or pack and send/deliver • Walk the person out • Avoid taking action in front of other employees • Be sure wages are properly and timely paid • Take appropriate security measures • Routine: computer access, building access • Consider enhanced security needs • Change locks, extra security

47. Appeal Procedures • Regular full or part time employees have the right to appeal any written reprimand, suspension, or dismissal to the council within seven (7) calendar days after receiving notice of such action. • If an employee wishes to file an appeal regarding an employment action, the appeal must be in writing and submitted within a seven (7) calendar day period following the delivery of the employment action. The council designee will place the appeal on the agenda of the next regularly scheduled council meeting. The council makes the final decision to uphold, amend, or rescind the employment action.

48. HARASSMENT