South Carolina Association of Counties Personnel Issues Update May 29, 2008 Linda Pearce Edwards, Esquire Gignilliat, Savitz & Bettis, LLP (803)

BACKGROUND CHECKS

Criminal background – all applicants tentatively selected for hire Criminal background – all applicants tentatively selected for hire Sex offender registry – all applicants tentatively selected for hire Sex offender registry – all applicants tentatively selected for hire –sled.sc.gov/sor Driving record for employees whose jobs require they drive a County vehicle Driving record for employees whose jobs require they drive a County vehicle Credit checks for employees involved in finance or otherwise handling money Credit checks for employees involved in finance or otherwise handling money

HANDBOOKS, POLICY MANUALS, SOPs

DISCLAIMER On Page 1 (first page after the cover) On Page 1 (first page after the cover) UNDERLINED, IN CAPITAL LETTERS UNDERLINED, IN CAPITAL LETTERS Signed by Employee and dated Signed by Employee and dated –Get two “original” signatures

POLICIES ISSUED SUBSEQUENT TO HANDBOOK/MANUAL “THIS IS NOT A CONTRACT OF EMPLOYMENT” “THIS IS NOT A CONTRACT OF EMPLOYMENT” First page of the document First page of the document Signature not required Signature not required

DRUG TESTING

POLICY Random testing Random testing –CDL drivers: testing required –“Safety sensitive” positions “Reasonable Suspicion” testing “Reasonable Suspicion” testing –All employees Applicants: tentatively selected for employment Applicants: tentatively selected for employment

FAIR LABOR STANDARDS ACT

COVERAGE & EXEMPTIONS Elected/Appointed Officials or Employees Elected/Appointed Officials or Employees Exempt Employees Exempt Employees –Salary Test –Duties Test

WORK TIME Meal breaks Meal breaks Pre- and post- work errands Pre- and post- work errands Preparatory & concluding activities Preparatory & concluding activities Homework Homework

WORK TIME, continued Waiting time – predominantly employer’s benefit Waiting time – predominantly employer’s benefit Rest breaks/coffee breaks/smoke breaks Rest breaks/coffee breaks/smoke breaks Training time Training time

WORK TIME, continued Travel time Travel time –Home to work –All in a day –Overnight On-call time – is not work time On-call time – is not work time Leave time – is not work time Leave time – is not work time

OVERTIME An employee cannot “volunteer” to do his own job An employee cannot “volunteer” to do his own job Each workweek stands alone (except law enforcement and fire service) Each workweek stands alone (except law enforcement and fire service) Must “work” before entitled to overtime Must “work” before entitled to overtime

OVERTIME, continued Compensatory time – 1 ½ hours off for each hour of overtime worked (non-exempt employees) Compensatory time – 1 ½ hours off for each hour of overtime worked (non-exempt employees) Unauthorized overtime Unauthorized overtime Employer and employee cannot “agree” to violate the Act Employer and employee cannot “agree” to violate the Act

VOLUNTEERS Employee cannot “volunteer” to do his own job and cannot perform the same type of services as a volunteer (e.g., administrative assistant) Employee cannot “volunteer” to do his own job and cannot perform the same type of services as a volunteer (e.g., administrative assistant) May receive reasonable expenses and nominal fee May receive reasonable expenses and nominal fee Cannot require employee to volunteer; cannot punish if refuses Cannot require employee to volunteer; cannot punish if refuses

DISCIPLINE & DOCUMENTATION

Date (day/month/year) and sign all memos, statements, etc. Date (day/month/year) and sign all memos, statements, etc. Make sure handwriting is legible Make sure handwriting is legible Prepare contemporaneously with events Prepare contemporaneously with events –Better memory –If late, looks fake

Be accurate. Even one factual error makes the entire document suspect. Be accurate. Even one factual error makes the entire document suspect. Do not draw conclusions unless you know. Stick to observed facts. Do not draw conclusions unless you know. Stick to observed facts. Be specific. Be specific. –Performance –Behavior

Don’t make excuses. Don’t make excuses. Don’t lie, even to be nice. Don’t lie, even to be nice. –“No good deed goes unpunished.” Be consistent with similar misconduct. Be consistent with similar misconduct.

Do not over-focus. Do not over-focus. Do not under-focus. Do not under-focus.

POLITICAL ACTIVITY

May not prohibit employee from working on political campaign, contributing to political candidates, or holding office in a political party. May not prohibit employee from working on political campaign, contributing to political candidates, or holding office in a political party. May prohibit political activity in the workplace or during work time. May prohibit political activity in the workplace or during work time. May not coerce employee to support a particular candidate. May not coerce employee to support a particular candidate.

May not fire someone who announces for non-partisan political office. May not fire someone who announces for non-partisan political office. May require that someone who announces for political office take a leave of absence. May require that someone who announces for political office take a leave of absence. NOTE: The federal Hatch Act covers employees whose job duties are “in connection with” programs or financed in whole or in part by loans or grants made by a federal agency. There are more stringent restrictions regarding these employees. For example, these employees may not run for partisan political office. NOTE: The federal Hatch Act covers employees whose job duties are “in connection with” programs or financed in whole or in part by loans or grants made by a federal agency. There are more stringent restrictions regarding these employees. For example, these employees may not run for partisan political office.

HARASSMENT

Unlawful harassment is verbal, nonverbal or physical conduct that denigrates, belittles or puts down and individual or shows hostility, distaste or aversion toward an individual based on his/her: Unlawful harassment is verbal, nonverbal or physical conduct that denigrates, belittles or puts down and individual or shows hostility, distaste or aversion toward an individual based on his/her:

Race Race Color Color National origin National origin Religion Religion Gender Gender Disability Disability Age Age Participation in protected activity Participation in protected activity

To be unlawful, conduct must be unwelcome and: To be unlawful, conduct must be unwelcome and: –submission to the conduct is made a term or condition of employment; or –submission to or rejection of conduct is used as the basis for employment; or –conduct has the purpose or effect of interfering with an individual’s performance or creating an intimidating, offensive or hostile work environment

Problem – determining whether behavior is unwelcome Problem – determining whether behavior is unwelcome Solution – any conduct which would violate the policy if unwelcome, violates the policy. Solution – any conduct which would violate the policy if unwelcome, violates the policy. –“no tolerance” policy

Practical problem Practical problem –Conduct might seem harmless to you but may not be harmless to others –That conduct is culturally or socially acceptable outside the workplace does not make it acceptable in the workplace

TYPES OF HARASSMENT Language Language Jokes, including s Jokes, including s Mimicking an employee’s accent Mimicking an employee’s accent Teasing Teasing Photos/screen savers Photos/screen savers

Staring/gestures Staring/gestures Touching, including “unintentional” Touching, including “unintentional” Intimidation Intimidation Vulgar conduct Vulgar conduct Inquiries of a personal nature Inquiries of a personal nature

RESPONSIBILITY Own conduct – Own conduct – –RULE: Do not say or do anything that you would not say or do in front of your parents, spouse or children  If you have to ask yourself “should I say/do it,” do not say it or do it.

Conduct of others – employees, vendors, the public Conduct of others – employees, vendors, the public –“Know or have reason to know”  Take seriously, no matter how trivial it sounds