South Carolina Association South Carolina Association of Countiesof Counties

Personnel Issues UpdatePersonnel Issues Update May 29, 2008 May 29, 2008

Linda Pearce Edwards, EsquireLinda Pearce Edwards, EsquireGignilliat, Savitz & Bettis, LLPGignilliat, Savitz & Bettis, LLP

(803) 799-9311(803) 799-9311

BACKGROUND CHECKSBACKGROUND CHECKS

Criminal background – all applicants Criminal background – all applicants tentatively selected for hiretentatively selected for hire

Sex offender registry – all applicants Sex offender registry – all applicants tentatively selected for hiretentatively selected for hire– sled.sc.gov/sorsled.sc.gov/sor

Driving record for employees whose jobs Driving record for employees whose jobs require they drive a County vehiclerequire they drive a County vehicle

Credit checks for employees involved in Credit checks for employees involved in finance or otherwise handling moneyfinance or otherwise handling money

HANDBOOKS, POLICY HANDBOOKS, POLICY MANUALS, SOPsMANUALS, SOPs

DISCLAIMERDISCLAIMER

On On Page 1Page 1 (first page after the cover) (first page after the cover)

UNDERLINED, IN CAPITAL LETTERSUNDERLINED, IN CAPITAL LETTERS

Signed by Employee and datedSigned by Employee and dated

– Get two “original” signatures Get two “original” signatures

POLICIES ISSUED SUBSEQUENT TO POLICIES ISSUED SUBSEQUENT TO HANDBOOK/MANUALHANDBOOK/MANUAL

““THIS IS NOT A CONTRACT OF THIS IS NOT A CONTRACT OF EMPLOYMENTEMPLOYMENT””

First page of the documentFirst page of the document

Signature not requiredSignature not required

DRUG TESTINGDRUG TESTING

POLICYPOLICY

Random testingRandom testing– CDL drivers: testing requiredCDL drivers: testing required– ““Safety sensitive” positionsSafety sensitive” positions

““Reasonable Suspicion” testingReasonable Suspicion” testing– All employeesAll employees

Applicants: tentatively selected for Applicants: tentatively selected for employmentemployment

FAIR LABOR FAIR LABOR STANDARDS ACTSTANDARDS ACT

COVERAGE & EXEMPTIONSCOVERAGE & EXEMPTIONS

Elected/Appointed Officials or EmployeesElected/Appointed Officials or Employees

Exempt EmployeesExempt Employees

– Salary TestSalary Test

– Duties TestDuties Test

WORK TIMEWORK TIME

Meal breaksMeal breaks

Pre- and post- work errandsPre- and post- work errands

Preparatory & concluding activitiesPreparatory & concluding activities

HomeworkHomework

WORK TIME, continuedWORK TIME, continued

Waiting time – predominantly employer’s Waiting time – predominantly employer’s benefitbenefit

Rest breaks/coffee breaks/smoke breaksRest breaks/coffee breaks/smoke breaks

Training timeTraining time

WORK TIME, continuedWORK TIME, continued

Travel timeTravel time– Home to workHome to work– All in a dayAll in a day– Overnight Overnight

On-call time – is not work timeOn-call time – is not work time

Leave time – is not work timeLeave time – is not work time

OVERTIMEOVERTIME

An employee cannot “volunteer” to do his An employee cannot “volunteer” to do his own jobown job

Each workweek stands alone (except law Each workweek stands alone (except law enforcement and fire service)enforcement and fire service)

Must “work” before entitled to overtimeMust “work” before entitled to overtime

OVERTIME, continuedOVERTIME, continued

Compensatory time – 1 ½ hours off for each Compensatory time – 1 ½ hours off for each hour of overtime worked (non-exempt hour of overtime worked (non-exempt employees)employees)

Unauthorized overtimeUnauthorized overtime

Employer and employee cannot “agree” to Employer and employee cannot “agree” to violate the Actviolate the Act

VOLUNTEERSVOLUNTEERS

Employee cannot “volunteer” to do his own job and Employee cannot “volunteer” to do his own job and cannot perform the same type of services as a cannot perform the same type of services as a volunteer (e.g., administrative assistant)volunteer (e.g., administrative assistant)

May receive reasonable expenses and nominal feeMay receive reasonable expenses and nominal fee

Cannot require employee to volunteer; cannot punish Cannot require employee to volunteer; cannot punish if refuses if refuses

DISCIPLINE & DISCIPLINE & DOCUMENTATIONDOCUMENTATION

Date (day/month/year) and sign all memos, Date (day/month/year) and sign all memos, statements, etc. statements, etc.

Make sure handwriting is legibleMake sure handwriting is legible

Prepare contemporaneously with eventsPrepare contemporaneously with events– Better memoryBetter memory– If late, looks fake If late, looks fake

Be accurate. Even one factual error makes the Be accurate. Even one factual error makes the entire document suspect. entire document suspect.

Do not draw conclusions unless you Do not draw conclusions unless you knowknow. . Stick to observed facts. Stick to observed facts.

Be specific.Be specific.– PerformancePerformance– Behavior 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.”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 ACTIVITYPOLITICAL ACTIVITY

May notMay not prohibit employee from working on political prohibit employee from working on political campaign, contributing to political candidates, or campaign, contributing to political candidates, or holding office in a political party. holding office in a political party.

MayMay prohibit political activity in the workplace or prohibit political activity in the workplace or during work time. during work time.

May notMay not coerce employee to support a particular coerce employee to support a particular candidate. candidate.

May notMay not fire someone who announces for non-partisan fire someone who announces for non-partisan political office. political office.

MayMay require that someone who announces for political office require that someone who announces for political office take a leave of absence. take a leave of absence.

NOTENOTE:: The federal Hatch Act covers employees whose job The federal Hatch Act covers employees whose job duties are “in connection with” programs or financed in whole duties are “in connection with” programs or financed in whole or in part by loans or grants made by a federal agency. There or in part by loans or grants made by a federal agency. There are more stringent restrictions regarding these employees. For are more stringent restrictions regarding these employees. For example, these employees may not run for partisan political example, these employees may not run for partisan political office. office.

HARASSMENTHARASSMENT

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

RaceRace ColorColor National originNational origin ReligionReligion GenderGender DisabilityDisability AgeAge Participation in protected activityParticipation in protected activity

To be unlawful, conduct must be unwelcome To be unlawful, conduct must be unwelcome and:and:– submission to the conduct is made a term or submission to the conduct is made a term or

condition of employment; orcondition of employment; or– submission to or rejection of conduct is used as the submission to or rejection of conduct is used as the

basis for employment; orbasis for employment; or– conduct has the purpose or conduct has the purpose or effecteffect of interfering of interfering

with an individual’s performance or creating an with an individual’s performance or creating an intimidating, offensive or hostile work intimidating, offensive or hostile work environmentenvironment

Problem – determining whether behavior is Problem – determining whether behavior is unwelcomeunwelcome

Solution – any conduct which would violate Solution – any conduct which would violate the policy the policy ifif unwelcome, violates the policy. unwelcome, violates the policy.

– ““no tolerance” policyno tolerance” policy

Practical problemPractical problem

– Conduct might seem harmless to you but may not Conduct might seem harmless to you but may not be harmless to othersbe harmless to others

– That conduct is culturally or socially acceptable That conduct is culturally or socially acceptable outside the workplace does not make it acceptable outside the workplace does not make it acceptable in the workplacein the workplace

TYPES OF HARASSMENTTYPES OF HARASSMENT LanguageLanguage

Jokes, including emailsJokes, including emails

Mimicking an employee’s accentMimicking an employee’s accent

TeasingTeasing

Photos/screen saversPhotos/screen savers

Staring/gesturesStaring/gestures

Touching, including “unintentional”Touching, including “unintentional”

IntimidationIntimidation

Vulgar conductVulgar conduct

Inquiries of a personal nature Inquiries of a personal nature

RESPONSIBILITYRESPONSIBILITY

Own conduct – Own conduct –

– RULERULE: Do not say or do anything that you would : Do not say or do anything that you would not say or do in front of your parents, spouse or not say or do in front of your parents, spouse or childrenchildren

If you have to ask yourself “should I say/do it,” If you have to ask yourself “should I say/do it,” do do notnot say it or do it. say it or do it.

Conduct of others – employees, vendors, the Conduct of others – employees, vendors, the publicpublic

– ““Know or have reason to know”Know or have reason to know”

Take seriously, no matter how trivial it soundsTake seriously, no matter how trivial it sounds