Human Resource Best Practices Part I – A Solid Foundation

1. Human Resource Best PracticesPart I – A Solid Foundation Presented by John M. Cummings, PHR Personnel Director Employment Practices Specialist Montana Municipal Interlocal Authority

2. Disclaimer • (Please Note: All materials, recommendations, and draft personnel policy language provided in this PowerPoint presentation should be reviewed and approved by a City Attorney prior to utilization or adoption.)

3. The Human Resource Foundation Personnel Policies and Procedures Employment Practices Liability Coverage (EPLC) through MMIA Job Description Development Performance Appraisals Corrective Action and Discipline (Part II)

4. Personnel Policies and Procedures

5. Why Create or Update our Personnel Policy Manual? • If PPM is more than 4 years old it should be reviewed • History of inaccurate policies and procedures circulating the State • Allows For Proactive Management • Improves Employee Relations • Helps Guide Your Supervisors

6. Why Create or Update our Personnel Policy Manual? • Functions as a recruitment tool • Assists in developing “Consistent” personnel management practices • PPM meeting MMIA’s underwriting criteria is required in order to attain Employment Practices Liability Coverage (EPLC)

7. Proactive Management & Employee Relations • Policies are established in writing and address situations in a uniform and non-discriminatory manner • Orients employees and assists them in understanding and following policies • May assist with union relations • Assists in making personnel actions defensible

8. Guiding Supervisors • Provide guidelines to supervisors • Reduce misunderstandings • Increase consistency • Support disciplinary action • Avoid charges of discrimination and favoritism

9. Recruitment & Retention Tool • Introduce your culture and environment and provide a clear understanding of policies and procedures • Include a Welcome Letter, and your Vision, Mission, History of your city/town and an Organizational Chart • Manual should be non-technical and accessible to a wide range of educational levels

10. Consistent Personnel Management • Examine what is in writing vs. what actually happens “on the job” • Consistency is key to employees adopting the guidelines • Provide training to employees, supervisors, and Council Members • Include Employee Signature Receipt Page with Policy Manual

11. Questions For The Group • Does your municipality have, and consistently follow, a PPM? • When was the last time you sat down and went through your town’s PPM?

12. Questions For The Group • Any current weaknesses you have found in the PPM that have caused you difficulty? • Who has final authority for Personnel Actions in your PPM?

13. Isn’t the Municipality Safer Without Anything in Writing? The Argument(s): • If we don’t have anything in writing, we won’t be held to that particular standard. • I have no way to ensure that employees and supervisors will follow the written policies and procedures.

14. Isn’t the Municipality Safer Without Anything in Writing? The Reason(s) to put policies and procedures in writing: • Difficult to enforce unwritten policies and procedures (& lack of consistency) • Court may decide based on past practices what your policies and procedures are • Leads to unproductive disputes • Charges are difficult to disprove

15. Best Practices Personnel Policies

16. In General • PPM size will depend on the complexity of the municipality. • There is no “required” PPM – Instead PPM should be designed to meet your needs • Most do not need a 50 to 70 page PPM • Handout “Template” Table of Contents (covers the basics in roughly 24 pages with attachments)

17. “Essential” Personnel Policies • Probationary Period • Unlawful/Sexual Harassment • Corrective Action and Discipline • Complaint Resolution and Grievance • Equal Opportunity Statement

18. “Essential” Personnel Policies • Work Site Safety • Family Medical Leave Act: public, state, & federal employers & private-employers who employed 50 or more employees in 20 or more workweeks • Maternity Leave • Military Leave

19. “Essential” Personnel Policies • Reduction In Force (RIF) Policy • New Employee Orientation • Drug Free Workplace / Drug and Alcohol Testing • Receipt Page (signature page for employee)

20. Reviewing Specific Policies • Probationary Period Policy • Unlawful/Sexual Harassment Policy • Corrective Action and Discipline Policy • Complaint Resolution and Grievance Procedure

21. Probationary Period Policy

22. Probationary Period – Defining Good Cause • Montana is not an “At Will” employment State. To discharge an employee who has completed their probationary period, the employer must show “good cause”. • Under the Montana Wrongful Discharge from Employment Act, good cause is defined as “reasonable job-related grounds for dismissal”

23. Probationary Period • Employers should include a probationary period policy in their manuals • During a one-year probationary period employment can be terminated by either party, at will, on notice to the other party, for any reason or for no reason”

24. Probationary Period • Montana Law defaults to 6 months if not stated. • Fire and Police have statutory probationary periods. • Collective Bargaining Agreements may set different probationary periods.

25. Probationary Period • Employers should not include a “Special Secret Double Probation Policy” • Probationary Period Policy “Extensions” should be carefully defined and consistently applied • Question: Does a non-probationary period employee serve a new probationary period when he/she is promoted/demoted? • Existing employees must undergo a break in service before they are placed in a new Probationary Period

26. Questions For The Group • How long is your probationary period & how long do you think it should be? • Do you allow for extensions to the probationary period? In what instances? • Is probation ever utilized as a substitute for corrective action?

27. Richie v. Town of Ennis, 2004 MT 43 • Richie hired as Town Marshal – Town had 6 mo probationary period • Mayor terminated Richie • Richie filed suit under Wrongful Discharge from Employment Act • Court upholds termination, but under State Statute allowing Mayor broad discretion to discharge probationary officer (12 mo probationary period)

28. Hunter v. City of Great Falls, 2002 MT 331 (December 20, 2002) • Firefighter probationary period governed by statute – but statute doesn’t limit it to 6 mo. • Hunter’s termination correct in that he did not meet other criteria for permanent employment. • Result is that prob periods can be extended but employee must be notified at beginning of employment, policies must be in writing, included in orientation, and extension should be made prior to original probationary period expiring.

29. Hobbs v. City of Thompson Falls • In summary: Police officers in Montana serve a probationary period of employment which cannot exceed one year. During their probationary period they may be terminated by the city's chief executive without cause. • However, following satisfactory completion of the probationary period of employment, a police officer cannot be terminated without cause.

30. Hobbs v. City of Thompson Falls The good cause provisions of the wrongful discharge from employment act are then applicable. That officer is still subject to confirmation by the city council / commission and does not become a member of the police force subject to other protections afforded to confirmed police officers without confirmation. However, confirmation cannot be denied following the satisfactory completion of the probationary period without good cause

31. Unlawful Harassment Policy

32. Unlawful Harassment • Unlawful harassment exposes you to an extremely high liability risk • Most easily offended person sets the standard • Summer help: Pools/Parks/Recreation

33. Unlawful Harassment • “It is the policy of this city to provide a work environment for each employee, which is free from unlawful harassment” • This city also prohibits retaliation against employees who expose harassment

34. Unlawful Harassment • Unlawful sexual harassment means any unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature when:

35. Unlawful Harassment • A. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; • B. Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or • C. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

36. Unlawful Harassment Examples • Unwelcome sexual advances • Sexual gestures; graphic verbal comments of a sexual nature, including such comments about a person’s body; sexually degrading words used to describe an individual • Displaying sexually suggestive objects, pictures, cartoons or posters

37. Unlawful Harassment • Provide a clear course of action • Provide clear procedures to follow • Provide a clear chain of command • Require them to report and record • Detail the steps that will be taken • Follow-up on remedy and prevent retaliation

38. Questions For The Group • Employee stops you in the grocery store and complains that the Mayor is creating a hostile work environment – they want you to advise the City Council to fire the Mayor – What advice to you provide the employee, the Mayor, the Council? • Supervisor discovers employee is downloading pornographic materials and distributing them throughout the office? What advice do you provide?

39. Star v. West, F.3d (9th Cir. January 18, 2001) • Star claimed hostile work environment – VA took remedial action against accuser but Star didn’t consider it enough discipline. • Result was that the court refused to require a certain kind of remedial action when an employer is faced with a sexual harassment claim. Employer can decide how to deal with the problem.

40. Nichols, et al. v. Azteca Restaurant Enterprises, Inc., F.3d (9th Cir., July 16, 2001) • Sexual harassment and retaliation claim based on “gender-based Stereotypes”. • Result was that Azteca’s policy and training did indicate reasonable care to prevent harassment BUT it did not exercise reasonable care to promptly correct harassing behavior so liable for hostile work environment. • Need Policy and Need to Enforce / Follow-up / and Prevent Retaliation

41. Dernovich v. City of Great Falls • The Montana Human Rights Commission found that off-color jokes and cartoons circulated around the office by both men and women created a hostile work environment. In addition, the city was ordered to prevent sexual harassment of employees and evaluate department heads’ performance each year based on "the quality and success of their efforts to implement and enforce the antidiscrimination policies."

42. Nichols, et al. v. Azteca Restaurant Enterprises, Inc., F.3d (9th Cir., July 16, 2001) • Sexual harassment and retaliation claim based on “gender-based Stereotypes”. • Result was that Azteca’s policy and training did indicate reasonable care to prevent harassment BUT it did not exercise reasonable care to promptly correct harassing behavior so liable for hostile work environment. • Need Policy and Need to Enforce / Follow-up / and Prevent Retaliation

43. Complaint Resolution and Grievance Procedure

44. Complaint Resolution and Grievance Procedures Grievances shall consist of matters of disagreement arising out of the employer-employee relationship: • where there is no applicable policy • where there is deviation from policy • where the policy is considered to be inappropriate

45. Complaint Resolution and Grievance Procedures • All disciplinary action may be subject to grievance, with the exception of corrective counseling and verbal warnings • A decision not to renew a term employment contract or to terminate a probationary employee are not grievable matters, and are not subject to the procedure. 

46. Complaint Resolution and Grievance Procedures • Grievance procedures steps should clearly outline the chain of command and required deadlines for all participants - Examples: • Verbally present grievance to supervisor   • Submit grievance in writing to supervisor • Supervisor provides written response • Employee may appeal by submitting written grievance to the Mayor – Mayor review and respond • Timeline / Deadlines are Key • Provide copy of Policy to terminating employees

47. Offerdahl v. State of Montana Dept. of NRC, 2002 MT 5 (January 15, 2001) • Under the Montana Wrongful Discharge from Employment Act, employers have complete defense if they have a written grievance procedures, they provide a copy to the employee at time of termination, and the employee fails to follow the policy – this case upholds this aspect of the WDA. • Court indicated that Oferdahl did not follow the guidelines under the grievance procedures.

48. Questions For The Group • Does your City or Town take grievances to mediation or arbitration? Pro’s and Con’s. • Employee wants to grieve the disciplinary actions of their Supervisor who is the Mayor – How do you advice the employee, the Mayor, and the Council?

49. Drug and Alcohol Free Workplace Policy – Policies and Procedures

50. Drug and Alcohol Testing • Drug and Alcohol Free Workplace Policy • Your city or town should review your need for a Drug and Alcohol Testing Policy. • Template available from MMIA