David Vestal

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Managing Your Office and County Personnel Issues
David Vestal General Counsel ISAC (515)
244-7181 dvestal_at_iowacounties.org
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3 Areas of Employment Law

• Hiring
• Workplace Administration
• Firing

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HIRING
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Chapter 216 It is discriminatory for an
employer to refuse to hire any applicant because
of the persons race, color, religion, sex,
national origin, ancestry, age or disability.
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The key is that everything you do must be
job-related -------every interview question you
ask and every job qualification you establish
must be justified based on the job you are hiring
someone for.
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Job Descriptions/Essential Functions
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Employment Application Forms
Required by Iowa Code Chapter 35C
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Advertising/Posting
35C (1)(3) requires that public notice of all
job openings must be posted at least 10 days
prior to the deadline
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Veterans Preference Application forms must
contain an inquiry into the applicants military
service for purposes of administering the
veterans preference law.
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Nepotism Under Iowa Code Chapter 71 you cant
hire a relative without the advance approval of
the board of supervisors
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Residency Requirements - The law is silent on
whether counties can use them.
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Confidentiality of Job Applications An Iowa
Supreme Court decision held that job applications
are confidential unless the applicant consents to
public disclosure.
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Drug Testing- Counties are free to establish
their own drug testing procedures, and they are
only limited by what the federal constitution
prohibits
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ADA and Job Interviews The ADA allows an
employer to ask about an applicants ability to
perform job-related functions.
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Do not ask

• Are you disabled?
• Have you had any injuries?
• Are you taking any prescription drugs?
• Have you ever filed a workers comp claim?

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You can ask

• Can you perform the functions of this job?
• Can you meet the attendance requirements of this
  job?
• How many days did you take leave last year?

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• If the person is obviously disabled or says that
  he or she is disabled, you can
• Ask only that one applicant to describe or
  demonstrate how he would perform the essential
  functions of the job
• Discuss what would be a reasonable accommodation

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• Do Not Ask
• How the person became disabled, or the prognosis
• About the nature or severity of the disability

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Post-offer medical exam - The ADA requires that
any medical examination of the applicant take
place after you have offered him a job, and then
he gets the job unless the medical exam reveals a
job-related problem
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Confidentiality employers are restricted from
informing co-workers of accommodations made for
disabled employees.
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The ADAs confidentiality requirement allows only
three exceptions 1)management personnel who
have to make the reasonable accommodations
2)fire and safety personnel and 3)government
officials checking compliance with the ADA.
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Negligent Hiring Iowa courts now recognize
that an employer can be sued for negligent
hiring.
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I-9s Within 3 days after hiring someone an
employer must verify his eligibility to work in
this country, and the way that is done is by
filling out an I-9 form and reviewing the
employees proof of employability.
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Under Iowa law, a county must also report any new
hire to the centralized employee registry within
15 days. The purpose of the law is to allow the
state to track workers who have child support
obligations.
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WORKPLACE ADMINISTRATION
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Wage Payment Iowa Code Chapter 91A governs
payment of wages by employers to employees. When
a person is terminated, the law requires
employers to pay all wages earned by the employee
by the next regular payday.
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Personnel Files Under Chapter 91B, an employee
has a right to examine and copy her personnel
file, including performance evaluations,
disciplinary records, and other information
concerning employer-employee relations. There
are three conditions on this access
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• The employer and employee must agree on the time
  when the file will be made available, and a
  representative of the employer can be present

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• An employee shall not have access to any written
  employment references and
• An employer may charge a reasonable fee for each
  copy made.

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Job performance evaluations are exempt from
disclosure under the exception in the public
records law for personal information in
confidential personnel records.
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The Iowa Supreme Court says that compensation
records of individual employees are public
records. Gender, address, and birth date
information are not.
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Internet Policies 1)Computers are solely or
primarily for county business. 2)Absolute right
to review and disclose all matters sent over the
system. 3)Warn that the system should not be
used to communicate any improper communications.
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Smoking in the Workplace Iowa law prohibits
smoking in public places except in designated
areas. That is Iowa Code section 142B.2(1).
Smoking areas may be designated by the persons
having custody or control of the public places.
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Family and Medical Leave Act The law entitles
employees to up to 12 weeks of unpaid,
job-protected time off a year for a serious
health condition, to care for a sick family
member or to have a child.
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FMLA only applies to workers who have been
employed by you for 12 months and who have worked
1,250 hours in the last 12 months (thats roughly
24 hours a week).
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FMLA only applies in the case of a serious
health condition, which is defined as an
illness or injury that involves inpatient care, a
period of incapacity lasting more than three
days, any incapacity due to pregnancy, a chronic
serious health condition, or multiple treatments
by a health care provider.
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Pregnancy Iowa Code section 216.6 prohibits
employers from basing hiring and firing decisions
on an applicants or employees pregnancy.
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Military Service Under Iowa Code section 29A.28,
if your employee is in the National Guard or any
other branch of the military, and are ordered to
active service, the employee must be given a
leave of absence for the period of active
service.
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There is also a federal law which took effect in
1994 which requires that you reemploy and
employee who leaves for extended military
service. Any such employee is entitled to a
total of five years of military leave.
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Sexual Harassment Two forms 1)quid pro quo
harassment taking adverse employment action
against someone for refusing to submit to a
supervisors sexual demands and 2)hostile
environment sexual insults and jokes or
unwelcome physical contact.
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The Supreme Court in 1998 announced that
employers are always liable for sexual harassment
by supervisors.
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How an employer responds to claims of sexual
harassment is often determinative of whether
liability will be imposed. Simply having a
policy is not enough.
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You must raise this issue with your employees
right from the start -- at orientation tell them
that sexual harassment is not permitted.
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Employment Discrimination Generally, counties
cannot make employment decisions which
discriminate against individuals based on their
race, color, religion, sex, national origin, age
or disability.
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Equal Pay The federal Equal Pay Act prohibits
employers from paying unequal wages for equal
work in jobs the performance of which requires
equal skill, effort and responsibility, and which
are performed under similar working conditions,
unless the difference in pay is based on
seniority, merit, productivity or any other
factor except sex.
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Age The federal Age Discrimination in Employment
Act makes it unlawful for any employer to make
any employment decision based on an individuals
age, and it protects persons 40 years of age or
older. The Iowa version protects anyone over 18.
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Discussing Employment Matters with the Board of
Supervisors Under the Open Meetings law, a board
of supervisors can go into closed session to
discuss a particular employee only when that
employee requests a closed session, and only if
keeping the meeting open would irreparably harm
her reputation.
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ENDING THE EMPLOYMENT RELATIONSHIP
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Suspension of Employees No pre-suspension
hearing required
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Employment at Will Employment at will state.
An employee may be discharged at any time for
any lawful reason.
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Exceptions include 1)an express contract 2)a
collective bargaining agreement 3)a employee
handbook
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There are also statutory limits on discharge. You
cannot fire someone
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• For reporting OSHA violation.
• For reporting for jury duty,
• For having their wages garnished,
• For being a whistleblower,
• For being pregnant,
• For meeting their military obligations or
• For being absent in order to attend a drunk
  driving course.

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There are also constitutional limits on
discharge. Someone cannot be fired generally for
things that they say as a public employee,
because they have a First Amendment right to say
whatever they want.
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If fired for reasons of dishonesty or immorality,
a person has a right to a name-clearing hearing,
which can be held after the termination
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Judicial Limits on Discharge The Iowa Supreme
Court has announced that employees cant be fired
for reasons that violate public policy, such as
filing a workers comp claim, filing for
unemployment benefits, or reporting suspected
child abuse.
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There are three questions you always want to ask
prior to terminating someone 1)were any
promises made about the duration of employment,
such as in an employee handbook
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2)is the proposed termination supported by the
employees record, personnel file and performance
appraisals? and 3)how would a neutral third
party react to your decision to terminate the
person?
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• Elements of a progressive discipline system
  include
• adequate notice of the employers work rules
• timely and fair investigation of incidents or
  charges
• even-handed application of work rules and
• penalties in proportion to the offense and the
  employees work record.

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Many progressive discipline programs employ a
four-step approach
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Step One is an oral warning with a note in the
file
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Step Two is a written warning with copies to the
employee and entered in the file
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Step Three is a disciplinary suspension of
several days without pay, along with written
warning that improvement is required within a
stated period of time or further discipline may
result and
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Step Four if the required improvement is not
evident within a stated period of time, such as
30 days, the employee is terminated.
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Giving References Iowa Code section 91B.2
grants job reference immunity to those that
provide work-related information about a current
or former employee. The immunity does not apply
if the reference is provided unreasonably or with
malice.
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COBRA If an employee of yours loses her job for
any reason other than gross misconduct, she must
be allowed to continue her group health insurance
benefits for up to 18 months on a self-pay basis.
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Unemployment Compensation Under Iowa Code chapter
96, any unemployed person is eligible for
benefits unless 1)it was a voluntary quit, which
means that the employee left work voluntarily
without good cause attributable to the employer
or
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2)she was discharged for misconduct, meaning a
deliberate act or omission which constitutes a
material breach of the employees work
obligations.