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

2. Presenters Jaki K. Samuelson Terry Maloy Kay E. Oskvig
Whitfield & Eddy, PLC
699 Walnut Street, Suite 2000
Des Moines, IA 50309
Phone: (515)
Terry Maloy
Executive Director
Iowa Extension Council Association
Phone: (641)

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

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6. HIRING AND Nepotism

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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 71.2 Payment 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

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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 and documentation

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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 Consistency Documentation Confidentiality Fairness
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

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52. KNOW THE LAWS
Illegal harassment and discrimination are not just based on sex/gender.

53. TITLE VII
Prohibits discrimination and harassment based on race, color, religion, national origin, gender, pregnancy;

54. ADEA: Age Discrimination in Employment Act
Prohibits discrimination and harassment against employees or applicants over age 40 and retaliation.

55. ADA/ADAAA: Americans with Disabilities Act and Americans with Disabilities Act Amendments Act
Prohibits discrimination and harassment against employees and applicants based on physical or mental disability or a perception of disability

56. IOWA CIVIL RIGHTS ACT Provides similar coverage to Title VII, ADEA, ADA, plus prohibits discrimination and harassment based on sexual orientation and gender identity.

57. Sexual Harassment
Sexual harassment is a form of gender based discrimination. It occurs when "unwelcome sexual conduct" is a "term or condition of employment."

58. Two types of sexual harassment: 1. Quid pro quo 2
Two types of sexual harassment: 1. Quid pro quo 2. Hostile work environment

59. Quid pro quo harassment occurs when:
The employee is a member of a protected class;
The employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
The harassment was based on sex;
The harassment affected a term, condition, or privilege of employment; and
The employer knew or should have known of the harassment and failed to take remedial action.

60. Quid pro quo harassment, cont.
4. The employee’s submission to the unwelcome advances was an express or implied condition for receiving job benefits or his/her refusal to submit resulted in a tangible job detriment; and
5. The alleged harasser was a manager or supervisor with significant control over the employee’s employment.

61. Hostile work environment harassment occurs when:
The employee belongs to a protected group;
The employee was subjected to unwelcome sexual harassment;
Whether conduct is "unwelcome" depends on the employee’s workplace conduct and not on conduct outside the workplace.
Evidence of an employee's own sexual conduct in the workplace is relevant to whether sexual conduct by others was unwelcome, but is not necessarily dispositive as to that issue.
The harassment was based on gender/sex;
The harassment affected a term, condition, or privilege of employment; and
The employer knew or should have known of the harassment and failed to take remedial action.

62. Whether conduct rises to the level of sexual harassment depends on the totality of the circumstances.
Isolated instances of offensive sexual conduct do not generally constitute harassment; however, a single incident that is particularly offensive may result in liability.
The conduct must be sufficiently severe or pervasive to create a hostile or abusive environment.

63. Factors relevant to the determination of whether conduct constitutes actionable sexual harassment include:
frequency
severity
whether it is physically threatening or humiliating or a mere offensive utterance
whether it unreasonably interferes with an employee's work performance.

64. Whether a workplace atmosphere is hostile or abusive is measured by both an objective and subjective standard -- (1) would a reasonable person (of same gender) find the environment hostile or abusive, and (2) did the employee, in fact, find the conduct hostile or abusive.

65. Evidence of sexual harassment of employees other than the complaining employee is relevant to show a hostile work environment.

66. Examples of Conduct that may give rise to sexual harassment:
Unwelcome sexual advances by co-employees or supervisors;
Unwelcome touching;
Gender-based threats or intimidation or violence;
Verbal comments, jokes (need not be specifically directed at the employee);

67. Examples of Conduct, cont.
Displays of sexual materials (need not be specifically directed at the employee) (i.e. calendars, pictures, cartoons, computer programs, gag devices, T-Shirts);
Comments reflecting gender based animosity or stereotyping (i.e. regarding inferiority of the other sex; women should stay home with their children; women should dress or act "femininely," women shouldn't travel);

68. Examples of Conduct, cont.
Favoritism to members of the same sex (i.e., in assignments, equipment, etc.);
Favoritism shown to a member of the opposite sex who grants sexual favors to the boss may or may not also give rise to liability to employees who are treated less favorably.
Sabotage of equipment, performance of members of the opposite sex.

69. HAVE A POLICY AND ENFORCE IT
The IECA handbook has a policy that should be followed.

70. SHOULD WE PROMISE CONFIDENTIALITY?
Only to the extent consistent with the need to investigate.

71. Things are not always what they seem
Consensual relationships often give rise to claims
Once the relationship sours
By other employees (rarely successful)
Employees who are laughing along are often not amused – they make claims.

72. IF YOU RECEIVE A COMPLAINT
(or observe conduct that is improper) . . .

73. Make sure it is reported to a person who is listed in your policy.
Immediately separate the complainant and alleged harasser.
Investigate

74. INVESTIGATIONS

75. WHAT COMPLAINTS SHOULD BE INVESTIGATED?
ALL complaints of harassment or discrimination.
Whether oral or written
Whether reported by victims or witnesses

76. Components of a good investigation
Promptness
Independent investigator
Thoroughness
Complainant/reporter is not the target of the investigation.
Reasonable steps to ensure no further complaints or problems during the investigation.
Do not promise complete confidentiality, but also do not broadcast the details.
Do not force confrontation between complainant and accused employee.

77. Who is an Independent investigator?
Do not permit alleged harasser/discriminator to participate as investigator or decision maker.
HR representative, member of personnel committee or Council (at least two should be involved) or someone outside organization (often an attorney)
Ensure investigator has proper training and/or direction.

78. What to do after the investigation is over?
Disciplinary action if complaint is founded.
Necessary steps to redress effects of the conduct on a victim
Restore leave
Address working relationship and environment issues
Necessary steps to prevent a recurrence
Work assignments
Training
Discipline
termination
Report to the parties
Your conclusion (was the complaint founded or not)
Appropriate information about action taken.
Avoid potentially retaliatory action and monitor employees to ensure they do not retaliate.

79. Investigation results should be presented to/discussed by council in a closed session (generally with counsel)

80. ATTORNEY CLIENT PRIVILEGE

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84. ATTORNEY-CLIENT PRIVILEGE
Protects communications between attorney and client
Who is the client?
- County Extension Council
Publishing to a third party (including Iowa State REED) destroys the privilege and it is not protected

85. OPEN / CLOSED MEETING LAW

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89. Iowa Code 21. 5 “. May hold a closed session
Iowa Code 21.5 “ May hold a closed session by public vote of either 2/3 of the members or all of the members present ... may hold a closed session . . .

90. (i) To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.”

91. (c.)  To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.

92. FOLLOW THE CORRECT PROCESURES
If a closed session to discuss personnel matter:
Notify employee before meeting and offer closed session option
List as closed session or possible closed session on agenda
Post agenda at least 24 hours before meeting

93. Record individual votes to go into and out of closed session
Stick to the topic that is authorized for the closed session
Make audio recording and written minutes

94. Do not take action in closed session (can take a straw poll)
Phrase motions for vote in open session in a way that avoids disclosure of confidential information

95. FMLA / Leave / paid time off

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100. FMLA: Family and Medical Leave Act
Applies to employers with >50 employees in a 75 mile radius and governmental employers regardless of size Applies to employees who have worked 1250 hours in the past 12 months

101. Provides leave of up to 12 weeks in connection with:
The employee’s serious medical condition;
The employee’s need to care for a child, spouse or parent with a serious medical condition; or
Birth or adoption of a child. (both maternity and paternity)
Provides leave for family members of members of the military for care-giving and taking care of “exigencies.”

102. Family Medical Leave Act (“FMLA”) PURPOSE
“…to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families and to promote the national interest in preserving family integrity.”

103. U.S. Department of Labor regulations provide that governmental entities (regardless of size) provide FMLA leave

104. Types of Leave Employees own serious health condition
Birth, adoption, newly placed foster child
Care of a spouse, child, or parent with a serious health condition
Military family member
Caregiver
Exigency

105. Legal Requirements Must provide leave to eligible employees
Must reinstate employees to equivalent positions after leave
May not interfere with leave
May not retaliate against an employee for taking leave

106. Who can be sued for violations?
Employer
Supervisors
Decision makers

107. Who is eligible for FMLA?
Employee must have been employed for at least 12 months
AND
Must have worked at least 1250 hours during last 12 months

108. Total Leave Available (Non Military)
Up to 12 weeks (60 business days) in a one year period
Right to leave ends when purpose for leave ends

109. Intermittent Leave
For chronic, recurrent conditions (i.e. diabetes, asthma, migraine headaches) or conditions requiring periodic treatment (i.e. cancer / chemotherapy), employees may take leave in increments as small as shortest available for other leave, but not greater than one hour
Available for employee’s own, or family member’s serious health condition

110. Intermittent Leave Not available for child birth, placement
Employee is obligated to work with employer to schedule appointments / treatments to minimize disruption of work

111. Is Leave Paid? Leave is unpaid HOWEVER
The current handbook policy requires that employees use available paid leave time contemporaneously with FMLA
Recent DOL guidance directs employers to timely designate FMLA leave

112. Substitution of Paid Benefits
Paid benefits run concurrently
Vacation/sick leave
Work comp
Cannot substitute more than one form of paid leave but may supplement by agreement
i.e., work comp supplemented with vacation/sick leave

113. Notice Requirements Employee initial notice
Do not need to use words “FMLA”
Can be oral if enough information provided to know absence may qualify
Can request enough detail to determine if it is a “serious health condition” (use caution)
What is the reason for the leave (general question – avoid ADA issue)
How long will you be gone
Are you seeking treatment
When do you expect to be back

114. Notice Requirements Employer notices (*use DOL forms)
General: policy, DOL posters
After leave request
Eligibility notice
Rights and responsibilities (substitution of paid leave; certification requirement; health care premium)
Designation (reminder re: paid leave, health premiums; requirement for return-to-work, fitness-for-duty)

115. Notice Requirements Employer notices Statutory time deadlines
Retroactive designation possible

116. Certification of Serious Health Condition
You may, and generally will want to require certification for:
An employee’s serious health condition
Family member’s serious health condition
No certification for leave to care for healthy newborn/adopted/foster child
May require documentation of absences due to adoption/foster process or complications related to pregnancy

117. Certification of Serious Health Condition
Documentation of family relationships
Medical certification for military caregiver

118. Serious Health Conditions
Inpatient care OR
Continuing treatment by healthcare provider
Incapacity plus treatment
Incapacity from pregnancy/prenatal care
Chronic conditions
Permanent/long term conditions
Conditions requiring multiple treatments

119. Incapacity Plus Treatment
Employee must be incapacitated more than 3 consecutive, full calendar days and either:
Receive two treatments by in person healthcare provider – first within 7 days; both within 30 days
Receive one treatment in person by healthcare provider plus regime of continuing treatment – i.e. medication, therapy prescribed

120. Chronic Conditions
At least two in person treatments by healthcare provider per year
Do not need to visit healthcare provider for every episode or flare-up
No requirement of more than 3 days’ incapacity

121. What Is Not A Serious Health Condition?
General rule:
Absent complications, common cold and flu are not serious health conditions
But they can be a serious health condition if they meet one of the “incapacity plus treatment” definitions

122. Leave To Care For Family Member
Covers both physical and psychological care (comfort and reassurance)
Can be intermittent, even if condition is not
Includes making arrangements for changes in care, such as transfer to nursing home

123. Reinstatement Required
Same or equivalent position
Compensation
Benefits
Responsibilities

124. Reinstatement Exceptions
Unable to perform position due to medical restrictions?
Explore accommodations
May include additional leave
Position elimination during leave
Employee intent not to return
Must be unequivocal
Leave stops when articulated
Fraud/moonlighting
Key employees
Exempt
Highest paid 10%
Substantial economic injury

125. What is Interference?
If employee is entitled to leave and employer denies
If employer makes it burdensome to take leave

126. What is Retaliation?
Basing any adverse employment decision on FMLA leave

127. QUESTIONS? Jaki K. Samuelson Terry Maloy Kay E. Oskvig
Whitfield & Eddy, PLC
699 Walnut Street, Suite 2000
Des Moines, IA 50309
Phone: (515)
Terry Maloy
Executive Director
Iowa Extension Council Association
Phone: (641)

128. THANK YOU