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There are many employment issues and very few “one-size-fits-all” answers. But there certainly are a core set of employment concepts and policies that your township should consider that will enrich employment relations and, if necessary, improve your township’s defense against employment-related litigation and claims. This E-Letter explores this core set of employment concepts and policies.

Create a Personnel Administration System – And Use It

As a threshold issue, each township should consider adopting a personnel administration system that eases management of the township’s personnel. A critical component of the system is having and using proper forms, from recruiting to the end of the employment relationship. These include job descriptions, applications, background check releases, I-9 forms, and tax withholding forms at the beginning of the relationship. It goes without saying these forms should be used for all applications, not just here and there.

Although it’s difficult to explain the many different roles and uses of a solid personnel administration system, it’s value is evident if we simply take a snapshot of how a system can streamline and improve the early phase of the employment relationship—hiring.  The interview stage of hiring allows the township to discern whether a certain applicant will fit with the township’s culture and be able to competently fulfill job duties. We recommend creating a list of lawful interview questions that will provide you with essential information, but avoid those that seek or could reveal an applicant’s membership in a protected class.  (The Michigan Department of Civil Rights issues a pamphlet describing lawful and unlawful interview questions and we strongly recommend you review and use this as a guide.)  Remember, the goal of the interview is to obtain job-related essentials:

• Identify the applicant (name, address, and telephone number);
• Learn about the applicant’s previous employment (job titles, salary levels, etc.);
• Receive a summary of the applicant’s background (education, training, work history, special qualifications and skills); and
• Uncover the applicant’s interests.

Beyond this basic information, townships should design questions to elicit job-related information that will be applicable and useful in deciding which applicant will meet the employer’s needs, not questions that might reveal protected information.

Of course, your personnel administration system is unique.  But do consider when the township will run a background check and be sure to use the information properly and lawfully.

As with any system, a personnel administration…only works if it’s utilized.

Learn and Utilize a Fundamental Concept

When deciding whether to be an at-will or a just cause employer, most townships and township attorneys opt for the greater discretion that goes with an at-will standard.

• At-Will. Most townships employ their employees under the concept of at-will employment. At-will employees may be terminated at any time for any lawful, non-discriminatory reason. In Michigan, employees are presumed to be at-will unless otherwise noted in the employment contract.
• Just Cause. Some townships declare that their employees are governed by principles of just cause. Just cause employees may not be discharged without a reason that amounts to just cause.

It is important to know, however, that at-will employment relationships only protect the township from contract based employment claims. Even an at-will employee that is terminated may claim that he or she was the subject of unlawful discrimination. State and federal courts have established a process for considering such claims.  Simply stated, in most discrimination cases, the employee first has the burden of showing that he or she is a member of a class of persons protected by law; that he or she is of a particular age, race, sex, suffers from a disability, etc.  Once the employee meets this burden, the courts then shift the burden to the township to show that its actions involving the employee were reasonable, founded in good faith, and not based upon the classification of the employee.  In other words, the township must show that it had a “good faith reason” for its actions.  Once the township makes this showing, the burden of proof then shifts back to the employee making a claim of discrimination to show that the employer’s “good faith reasons” are a mere pretext for its supposed discriminatory conduct.

Whether or not a township declares itself an at-will employer, if an employee can establish a prima facie discrimination claim, that claim can effectively force the township to prove just cause. Thus, you should always be prepared with a legitimate, good-faith business reason for any employment decision, whether it comes up in hiring, discipline, or termination of employment. (This is the Fundamental Concept.) If you are able to do so, the township will not only create an atmosphere that leads to a feeling of fairness and clarity among employees (which can only lead to stronger morale and productivity), but you will protect the company from the myriad claims that employees can bring.

Avoid Mistakes on Simple Overtime Basics

It is a common misconception that making an employee “salaried” automatically means the township is not required to be mindful of overtime issues. Salaries for a specific employee position does not guard a township against overtime compensation obligations. The issue is really whether the employee meets any of the exemption tests under federal law. “Non-exempt” employees must be paid one and one-half times their regular rate of pay for all hours over forty (40) worked in a workweek. Some townships also choose to pay overtime for hours worked over 8 in a workday.  This is not legally required, but a permissible application of overtime.

To avoid overtime claims by current or former employees, your policies should:

• Refer to “exempt” and “non-exempt”—not salaried and hourly.
• Thoroughly review the tests for exemption on the basis of “Professional,” “Administrative,” and “Executive” classifications.  The title is not controlling in determining whether an employee is eligible for overtime pay: it is all about job duties.  The consequences are significant if the employee is incorrectly classified.
• Require all employees to document their time—exempt or not.
• State that employees may not work more than their regularly scheduled shift without advance approval from their supervisor—and enforce that part of your policy consistently.
• Identify what hours count toward overtime—vacation, holidays, paid leave?  The law only requires “hours worked” to count for this purpose, but you may expand it to include paid leave.

Special rules regarding compensation must be observed for law enforcement or fire protection employees.  These employees are exempt if fewer than 5 employees employed in that work week by the township. There is also a partial exemption to acknowledge that these folks typically work more than 40 hours a week.

• Fire protection employees receive overtime for hours worked over 212 hours in 28 day period (or 53 hours a week).
• Law enforcement employees receive overtime for hours worked over 171 hours in 28 day period (or 42.75 hours a week).

Remember, however, that civilian employees who engage in support activities, such as dispatchers, are not considered to be engaged in fire protection or law enforcement activities.

Don’t Overlook Alcohol and Drug Use

Alcohol and drug use by employees clearly present concerns for the workplace. The most common issues are off duty use of medical marijuana, inappropriate use of prescription medication, and alcohol or drug use while on call.  The key to managing these circumstances is to maintain your focus on providing a safe and secure work environment for employees that is both alcohol and drug-free.  You may consider adopting a zero tolerance policy that prohibits the following while on township property, on township business, or during work hours including meal or rest periods:

• Possession, distribution, use or impairment by or being under the influence of alcohol or illegal prohibited drugs; or
• Being impaired by or under the impairing influence of legal prohibited drugs or substances.

Upon adoption of such a policy, any employee who violates this policy may be disciplined up to and including discharge. This should be strictly enforced.

Any policy relating to alcohol and drug use may also reserve the right to search an employee, employee work area, and property and/or test an employee for alcohol or drugs if the township has a reasonable suspicion that this policy may have been violated. Such searches or tests may be initiated without prior announcement and conducted at such times and locations as the township deems appropriate. Refusal to cooperate with such searches or tests may result in discipline or discharge as well under your policy.

Put Key Policies in Place

Certain policies are key for every township to address, such as equal employment opportunity statements, policies regarding accommodating disabilities, unlawful harassment, and family or medical leave.

Equal Employment Opportunity – a sample policy

“The Township is an equal opportunity employer whose policy is to select personnel and conduct all personnel activities without regard to religion, race, color, national origin, age, sex, height, weight, disability, or marital status. The Township maintains a system of uniform and equitable personnel policies and procedures to assure equal treatment of all employees. The Township will not retaliate against any employee engaging in a protected activity in furtherance of this policy. As an equal opportunity employer, the Township, does not discriminate on the basis of race, color, gender, religion, age, marital status, national origin, height, weight, disability, or any other reason prohibited by federal or state law.

“Therefore, it is the Township’s policy to:

• “Recruit, hire and promote all job classifications without regard to race, color, gender, religion, age, marital status, national origin, height, weight, disability, or other reason prohibited by federal or state law;
• “Ensure that all personnel actions such as compensation, benefits, dismissals, company-sponsored training, education, and social programs shall be based on qualifications, experience, or other legitimate, non-discriminatory considerations.”

Accommodating Disabilities

With respect to accommodating disability, the policy should reflect that an employee may not be discriminated against in employment because of a disability that can be reasonably accommodated to enable the employee to perform the essential functions of his or her job. This message is consistent with federal and state law requirement. Any policy should instruct employees who feel an accommodation is needed to perform a job should notify the township Supervisor/Superintendent/Manager of the need for accommodation as promptly as possible. Generally speaking, we recommend that the request be made in writing within 182 days or sooner after one knows or reasonably should have known that an accommodation was needed. And with any discrimination policy, any employee who believes he or she has been the subject of unlawful discrimination or retaliation should be instructed to report the alleged act, preferably in writing, immediately after the alleged discrimination or retaliation occurs.

Unlawful Harassments

An unlawful harassment policy should prohibit unlawful harassment of any kind—not just sexual harassment. The Equal Employment Opportunity Commission and the Michigan Department of Civil Rights will ask for a copy of this policy if unlawful harassment or discrimination is ever alleged by a current or former employee. Thus, this is a key policy. The policy should include:

• A procedure to receive written complaints should be established, including who reviews the complaint, and within what timeframe.
• An investigation procedure that includes a clear statement that a victim will never be required to confront the alleged harasser and that employees will be protected from coercion, intimidation discrimination or retaliation for filing a complaint or assisting in an investigation.
• Reserve for the township the discretion to determine whether a particular action or incident arises from a purely personal, welcome social relationship without a discriminatory employment effect by acknowledging that each and every complaint requires a factual determination based on all facts in the matter.
• Employee and officials should be invited to act responsibly to establish and maintain a pleasant working environment, free of discrimination, harassment, and retaliation for all.
• Training on township’s policy in critical.

Family or Medical Leave

All townships are “covered employers” under the federal Family Medical Leave Act (FMLA), but township employees are not automatically eligible for FMLA benefits of 12 weeks of unpaid leave. To be eligible under the FMLA for the unpaid, job-protected leave per twelve-month period for certain family and medical reasons, employees must:

• Have been employed by the township for twelve months;
• Have worked at least 1,250 hours during the previous twelve months; and
• Have worked at a location with fifty (50) or more township employees.

Note that employees may also be entitled to up to 26 weeks of leave for certain reasons related to military caregivers and qualifying exigencies.  Check your policies to be sure you caught this change to the FMLA.  If township employees are likely to be eligible for leave, the township must have an FMLA policy in place that describes the rights and responsibilities of both the employee requesting leave and the township.  Whoever manages personnel matters in the township must become familiar with the tight timelines for providing certain notices and for obtaining forms from the employee.

If your township does not have 50 employees, but still wants to offer family or medical leave, consider adopting your own program rather than incorporating the rigorous and numerous requirements of the FMLA.

By: Helen “Lizzie” Mills

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.