Personnel Issues New County Officers School January 20, 2005 David Vestal General Counsel (515)

FLSA

Executive Exemption Must meet all of these tests:   Must make at least $23,660   Primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.   Must regularly direct the work of at least two other full-time employees.   Must have the authority to hire others.

Administrative Exemption Must meet all of these tests:   Must make at lease $23,660.   Primary duty must be the performance of office or non-manual work directly related to the management of the enterprise.   Primary duty included the exercise of discretion and independent judgment with respect to matters of significance.

Professional Exemption Must meet all of these tests:   Must make at lease $23,660.   Primary duty must be the performance of work requiring advanced knowledge,   The advanced knowledge must be in the field of science or learning.   The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Termination

The disciplining and termination of employees in your office is up to you, not the board of supervisors. The disciplining and termination of employees in your office is up to you, not the board of supervisors.

Iowa is an employment at will state. This generally means that an employee can be fired for any lawful reason at any time. Iowa is an employment at will state. This generally means that an employee can be fired for any lawful reason at any time.

There are many exceptions to this rule. For instance, an employee cannot be fired for: There are many exceptions to this rule. For instance, an employee cannot be fired for:  Fulfilling jury duty;  Engaging in union activities;  Whistle blowing;  Filing a workers comp claim; or  Filing for partial unemployment.

Veterans Preference Veterans cannot be fired except for incompetence or misconduct shown at a hearing. They are also entitled to pre-termination notice. Veterans cannot be fired except for incompetence or misconduct shown at a hearing. They are also entitled to pre-termination notice.

Enforceable contracts can be created by employee handbooks or personnel manuals.

“I further understand that these Personnel Policies…do not create a contract of employment between myself and Story County. Furthermore, I do not claim this to be so, nor will I ever make a later claim or assertion that there is such a contract between myself and Story County.”

County employees who have been fired due to allegations of dishonesty or immorality need to be given an opportunity to refute the charges. A post-termination name clearing hearing is sufficient.

Patronage Terminations

Can someone who wins a County auditor race come in and fire all of the employees in the office who worked against them in the campaign?

In Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), the Supreme Court ruled that the First Amendment prohibits government officials from discharging public employees solely for not being supporters of a political party in power.

Newly-elected county officials generally cannot fire existing office staff due to political affiliation.

Current office workers are generally going to be at-will employees that can be fired at any time for any legal reason. But you cannot fire them because they belong to the wrong political party.

There is an exception to that rule, however. It’s based on a federal lawsuit from southern Iowa called Deemer v. Durrell. The court upheld the firing in a situation where “the lack of trust between the employees would clearly impede the efficient performance of duties in the recorder’s office.”

So if you can prove that the performance of duties in your office has suffered, and it is a small office, maybe you can fire an opponent, but generally, no.

You must document in your records the conduct that led to the termination.

Don’t give positive performance evaluations if you don’t mean it.

Check to see if your county uses “certificates of appointment.” Iowa Code section (2).

Before terminating an employee, county officials need to consider: Is the employee covered by a collective bargaining agreement? Is the employee covered by a collective bargaining agreement? Is the employee a veteran? Is the employee a veteran? Is the employee covered by an written employment contract? Is the employee covered by an written employment contract? Is the employee being terminated for a reason contrary to public policy? Is the employee being terminated for a reason contrary to public policy?

Cont’d Is the employee protected by any special statute such as the whistle blower statute? Is the employee protected by any special statute such as the whistle blower statute? Is the employee being terminated due to his/her age, religion, sex, disability or race? Is the employee being terminated due to his/her age, religion, sex, disability or race? Is the termination prohibited by the county’s employee handbook/personnel policies? Is the termination prohibited by the county’s employee handbook/personnel policies?

Go back and check on two things: Do you use written job application forms for all county positions, and do those job applications ask if someone is a veteran? Do you use written job application forms for all county positions, and do those job applications ask if someone is a veteran?

Do you have a county employee handbook or personnel policies? If so, make sure the handbook has language in it saying that “this handbook does not constitute a contract, all employees are at will. Do you have a county employee handbook or personnel policies? If so, make sure the handbook has language in it saying that “this handbook does not constitute a contract, all employees are at will.