2015 fall conference: public meeting, admin and hr-brick
TRANSCRIPT
COMMON MEETING & EMPLOYMENT ISSUES
Matthew BrickBRICK GENTRY P.C.6701 Westown Parkway Suite 100 West Des Moines, IA [email protected]
Open Meetings
Iowa Code § 21.2(2)
What is a “Meeting” ? Gathering in person or by electronic means;
either Formal or informal; of a Majority of the members of a governmental
body; with Deliberation or action upon any matter
within the scope of the governmental body's policy‑making duties.
This excludes gatherings for purely ministerial or social purposes where there is: (1) no discussion of policy; or (2) no intent to avoid the purposes of Chapter 21.
Meetings FAQ
Iowa Code § 21.2(2)
Can members get together socially? Yes, but they cannot discuss business. A
gathering becomes a “meeting” when a quorum of officials engage in discussion on matters over which they exercise judgment
Can members e-mail each other concerning governmental business? Yes, but limit it to sharing relevant information.
If members want to share an opinion or debate policy, they should save that discussion for the open session.
Notice for Open Meetings
Iowa Code § 21.4
Public Notice Notice must be reasonably calculated to
advise the public of the following elements: Time; Date; Place; and Tentative agenda.
24 hours prior to commencement of meeting.
Electronic Meeting
Iowa Code § 21.8
Electronic Meeting. Available only when meeting in person is impossible or
impractical and must meet the following requirements: Provide access to conversation to extent reasonably
possible; Comply with notice requirements of 21.4; Record minutes and note why meeting in person was
impossible or impractical; and Comply with procedures for closed meetings when
applicable. Whether any one or more members less than a quorum can
join a meeting by electronic means is controlled by the body's rules.
Meeting Minutes
Iowa Code § 21.3
Must identify date, time, place, members present and action taken at each meeting.
Minutes must identify result of each vote taken and information sufficient to indicate the vote of each member present.
The vote of each member present shall be made public at the open session. Minutes are public records open to public inspection.
Closed Sessions
Iowa Code § 21.5(c) and (i)
Available only to extent necessary for any of the reasons set forth in Iowa Code § 21(a)-(l). Examples:
To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.
To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual's reputation and that individual requests a closed session.
Closed Session Procedures
Iowa Code § 21.5(1) & (2)
Affirmative vote of 2/3 members or of all members present.
The vote of each member on the question of holding the closed session must be announced publicly and entered in the minutes.
The reason for holding the closed session must be announced publicly and entered in the minutes.
Closed Session Procedures
Iowa Code § 21.5(2) & (3)
Any business discussed during a closed session must relate directly to the specific reason announced as justification to close the session.
Final action on any matter discussed during a closed session must be taken in open session unless a specific provision of the Code expressly permits final action in closed session.
Closed Session ProceduresDetailed minutes must be kept on the following:• All discussion; persons present; and action
occurring.Closed sessions must be tape recorded.
Minutes and tape recording must be sealed and retained for at least one year.
Iowa Code § 21.5(4)
Closed Session Violations
Iowa Code § 21.6
Fees: The Court shall order the payment of all costs
and reasonable attorney fees in the trial and appellate courts to any party successfully establishing a violation
Void: The Court shall void any action taken in
violation of this Chapter. Removal:
The Court shall issue an order removing a member of a governmental body from office if that member has engaged in a prior violation
Closed Session Violations
Iowa Code § 21.6
Fines: The court shall assess damages of $100 to $500
against the persons who participated in violating the law, which can be increased to $1,000 to $2,500 for knowing violations.
A member of a governmental body found to have violated this chapter shall not be assessed such damages if that member proves that the member did any of the following: Voted against the closed session, or; In good faith believed facts which, if true, would
have indicated compliance with all the requirements of this chapter, or;
Reasonably relied upon a decision of a court, a formal opinion of the attorney general, or the attorney for the governmental body.
Iowa Code § 21.6
Common Public Sector Employment Issues
The Role of Background Checks When making personnel decisions, based
on background checks, including: hiring, retention, promotion or reassignment you must comply with federal laws.
Request for background check information must be given in a stand alone document.
Actions Based on Background Checks Before you take action you must:
Provide the employee notice that includes the consumer report you relied on.
Provide the employee with a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
After you take action you must: State that the decision was based on
information in the report. That he/she has the right to dispute the
accuracy of the report.http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm
Court Test Most courts follow the 8th Circuit test
developed in the 1970’s: 1. Nature of the crime; 2. Time elapsed since crime; and 3. Nature of the job.
Denial of job requires: A. Notice that crime was reason; B. Opportunity for applicant to respond;
and C. Reconsideration by employer.
“Ban the Box” Initiative An initiative designed to give job seekers
with criminal convictions a “Fair Chance” at employment.
Bans the use of conviction history questions prior to evaluating whether the employee is qualified for the position.
Fair Chance policies have been adopted by 19 states and over 100 cities.
Iowa does not currently have a policy, however, various policies exist in nearby: Nebraska, Minnesota, Illinois, and Colorado.
EECO Position April 2012 EEOC Enforcement Guidelines
on criminal background checks. Employer’s use of criminal background
checks in making an employment decision can be presumed to be discrimination on the basis of race or national origin.
Based on disparate treatment or disparate impact theories of discrimination.
This is the EEOC’s position, it is not a position that has been widely adopted by the courts.
The Only Rule to Remember
IF IT WASN’T WRITTEN DOWN IT DIDN’T HAPPEN!!!
Documentation Educates Employees. Juries draw negative inferences from
the absence of documents. Written records refresh memories. Establishes that similarly-situated
employees treated same. Courts give greater weight to
documents than to memories.
Suggestions for Documentation Assume ALL documentation will end
up in a court of law. Prepare documentation as soon after
the incident as possible. Give an opportunity to improve. Avoid Jargon and use understandable
language. Narrate a story.
The Role of Voice & E-mail E-mail and voice mail are effective
forms of documentation to protect yourself.
A short e-mail to an employee is sometimes all that is needed.
If you do not make e-mail or voice mail work for you, it will most likley work against you and the company.
The Role of Performance Evaluations
When disciplining or terminating for ongoing job performance, the performance issues must be documented.
The first place courts look is an employee’s past performance evaluations.
Performance Evaluation Best PracticesA “Good” employee evaluation is one that is balanced, accurate, and properly documented.
Tips: Recognize achievements. Identify areas for improvement. Coordinate employee’s goals with
Employer’s goals. Set expectations and consequences. Describe performance instead of merely
“checking a box.”
Supervisors’ Responsibilities: Ensure all employees perform their
assigned duties and responsibilities in an effective and efficient manner.
Evaluate and discuss performance with employees.
Apply disciplinary action. Treat all employees fairly. Act in a manner that does not demean or
label employees.
Taking Disciplinary Action
Traps to Avoid Showing sympathy Becoming angry or
defensive Not asserting yourself Trying to counsel the
employee Believing you can
change the employee
Blaming the employee
Rambling and unclear points
Failing to document properly
The Discipline Decision Did the company give prior warnings of the
possible consequences of the conduct? Was the company’s rule or the supervisor’s
order reasonably related to the efficient and safe operation of the company?
Did the company obtain sufficient evidence?
The Discipiline Decision Did the company investigate? Was the company’s investigation
objective? Was this termination consistent with
past actions? Was the amount of discipline
“reasonably related” to the offense?
Common Termination Issues Discrimination
Every employee is a member of a protected class!
Retaliation A large number of retaliation cases are
brought when the underlying discrimination claim has no merit.
Disparate treatment/impact Defamation Non-work activities
Non-Work Activities Examples of illegal off-duty activities:
DUI Shoplifting Drug arrest
If an employee is sentenced to jail time, justification for discipline may not be the crime they committed, but the fact the employee cannot fulfill their obligation to report to work.
Courts have upheld the legality of termination or discipline for off-duty behavior that negatively impacts the work environment, job performance, or employer’s reputation.
Non-Work Activities “Concerted activity” is protected activity
When employees are discussing terms and conditions of employment with fellow employees.
Therefore, employees have the right to make comments on social media about their wages and working conditions with their co-workers.
Example: Brian learned on Saturday that John had planned to complain
to HR about Brian and several other employees work. That Saturday, Brian posted on his Facebook page: “John
feels that we don’t help our clients enough. I about had it! My fellow co-workers how do you feel?”
The employer fired Brian and four other employees that commented on the Facebook post for violating the employers harassment policy.
HOWEVER, the court found the employees were engaged in concerted activity—therefore wrongfully terminated.
Non-Work Activities An employee's social media activity is not
protected “concerted activity” if it does not: Involve other employees Relate to the shared terms and conditions of
employment Is an activity that is otherwise carried out in a
reckless or malicious manner Social media activity that is not protected could
include: Communications unrelated to the terms and
conditions of employment Posts protesting the quality of services provided by
an employer only tangentially related to employee terms and conditions of employment
Expressions of an individual gripe.
