Issues in Hiring : Employment at Will, FLSA and Affirmative Action

1. Issues in Hiring: Employment at Will, FLSA and Affirmative Action Vicki Webster, HR Compliance Manager

2. January Training • Avoiding Discrimination in Hiring • Protected classes • Discrimination laws, ordinances, policies • Interview questions and comments

3. Employment at WillCity of Olathe • “The City of Olathe is and will remain an ‘at will’ employer (Employee Handbook, Introduction) • “[…] either I or the City of Olathe can terminate the relationship at will, with or without cause, at any time […]” (Employee Handbook Acknowledgment Form, signed by all employees) • “the City of Olathe may terminate the employment at will at any time, with or without notice or cause […]” (Employee Handbook, Section 2-1) • Reasons for Disciplinary Action, “this list is by way of example and is not intended to be exhaustive” (Employee Handbook, Section 5-2)

4. Employment at Will Means that: • An employer can fire the employee at any time for any reason or for no reason • An employee may resign at any time for any reason or for no reason at all Potential exceptions • Public policy • Implied employment contract

5. Public Policy Means that an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the state • Filing a workers compensation claim • Refusing to break the law • Whistleblowing • Discriminatory reasons

6. Implied Contracts Means that an “implied contract” may have formed between an employer and employee, even though there is no express, written agreement • Representations that termination can only be for “just cause” • Manager comments that employment will continue as long as the employee “does their job” • References to “permanent” status • Supervisor comments that the organization “never fires anyone”

7. Preserving At Will Employment Don’t • Refer to “permanent” status • Imply that employees can only be discharged for offenses listed in the Handbook • Send employees a “welcome to the family” letter • State an annual salary in an offer letter • Imply that an employee’s job is “safe” as long as he or she does a good job • Retaliate against an employee who makes or supports a complaint against you or the City

8. Preserving At Will Employment Do • Follow disciplinary procedures carefully (Employee Handbook, Section 5) • Give and document warnings • Apply discipline consistently • Give honest and fair performance reviews • Don’t downplay problems • Use supporting examples • Warn employees with performance or behavior problems that termination is a possibility • Consult with HR if you are unsure about • What to say to a desirable job candidate or employee • How to handle disciplinary or performance problems

9. Employment at Will Quiz • A. True. • A. True. • A. True. • B. False. • B. Not an all-inclusive list of the offenses for which an employee could be fired. • C. Stating the annual salary. • A. Avoid referring to jobs as “safe” or “secure” • A. True. • A. True • B. False.

10. The Fair Labor Standards Act (FLSA) • Establishes minimum wage, overtime pay, recordkeeping and child labor standards for City of Olathe employees • A HUGE law and we will focus on the parts most relevant to Olathe’s workforce

11. FLSA Wage Requirements • Minimum wage = $7.25/hour • Same as Kansas • Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours work in a workweek • For law enforcement and fire protection employees, overtime is paid when work exceeds 212 (fire) or 171 (police) hours in 28 days

12. Exempt v. Nonexempt • Executive, administrative, professional and employees in certain computer-related occupations are exempt • FLSA establishes “tests” for determining whether an employee qualifies for one of these exemptions

13. FLSA – Exempt Status • Regularly receive a predetermined salary? • Paid at least $23,660 annually ($455 weekly)? • Does the employee’s primary dutyconsist of performing office or non-manual work directly related to the management or general business operations of the employer or the employers customers? • Does the work include the exercise of discretion and independent judgment with respect to matters of significance?

14. Examples – Olathe Position Guides Quiz • Oversee the administrative functions of the department such as personnel and records management • NONEXEMPT - Administrative Support III • Run samples to the lab from the plants as needed • NONEXEMPT - Heavy Equipment Operator • Manages the Prosecutor’s Office for the City of Olathe, including an annual budget of $700,000 • EXEMPT – City Prosecutor • At a company level, manage the inspection and pre-emergency planning of various facilities and occupancies • EXEMPT – Fire Captain

15. Olathe – Affirmative Action Plan • Designed to ensure equal employment opportunity • OFCCP • EEOC • Components • Statement of Policy • Diagnosis of Problems • Actions to Correct Problems • Standards for Tracking Progress

16. City of Olathe - Policy It is the policy of the City of Olathe to provide equal employment opportunities without regard to race, color, religion, gender national origin, age, disability, marital status, veteran status, genetic information or any other protected characteristic under applicable law.

17. City of Olathe - Diagnosis • Address the discrepancy between the percent of available Hispanic workers in the City’s population (10%) and the percent currently employed (3%) • Address the discrepancy between the percent of available Asian or Pacific Islander workers in the City’s population (5%) and the percent currently employed (1%).

18. City of Olathe - Diagnosis • Continue to make efforts to recruit qualified female candidates

19. City of Olathe - Diagnosis • Increase the number of minorities selected for the “officials and administrators” job category

20. City of Olathe - Diagnosis • Increase female protective service workers • Increase female skilled craft workers • Increase male administrative support

21. City of Olathe - Diagnosis • Mentor and promote female applicants and incumbents in protective service, skilled craft and service-maintenance job types

22. City of Olathe - Diagnosis • Continue efforts to recruit and select minority applicants for and to mentor and promote minority applicants to positions in salary groups over $75,000

23. City of Olathe - Diagnosis OFCCP goal = 7%

24. City of Olathe - Diagnosis • Excellent!

25. City of Olathe - Action YOU! = Managers and Supervisors “Diligently recruiting, selecting and promoting qualified applicants from protected classes to reduce all disparities in utilization in the City's work force”

26. Questions? Vicki Webster HR Compliance Manager (p) 913-971-8724 (f) 913-971-8715 VLWebster@OlatheKS.org