Personnel Issues Personnel Issues New County Officers School New County Officers School

January 20, 2005January 20, 2005

David Vestal David Vestal General CounselGeneral Counsel

ISACISACdvestal@iowacounties.org dvestal@iowacounties.org

(515) 244-7181(515) 244-7181

FLSAFLSA

Executive ExemptionExecutive 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 ExemptionAdministrative 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 ExemptionProfessional 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.

TerminationTermination

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

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

There are many exceptions to this There are many exceptions to this rule. For instance, an employee rule. For instance, an employee cannot be fired for:cannot be fired for:

Fulfilling jury duty; Fulfilling jury duty; Engaging in union activities; Engaging in union activities; Whistle blowing; Whistle blowing; Filing a workers comp claim; orFiling a workers comp claim; or Filing for partial unemployment.Filing for partial unemployment.

Veterans PreferenceVeterans Preference

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

Enforceable contracts can beEnforceable contracts can be

created by employee handbookscreated by employee handbooks

or personnel manuals.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 haveCounty employees who have

been fired due to allegations ofbeen fired due to allegations of

dishonesty or immorality need to dishonesty or immorality need to

be given an opportunity to refute be given an opportunity to refute

the charges. A post-termination the charges. A post-termination

name clearing hearing is name clearing hearing is

sufficient. sufficient.

Patronage Patronage TerminationsTerminations

Can someone who wins aCan someone who wins a

County auditor race come in County auditor race come in

and fire all of the employees in and fire all of the employees in

the office who worked against the office who worked against

them in the campaign? them in the campaign?

In Elrod v. Burns, In Elrod v. Burns, 427 U.S. 347427 U.S. 347(1976) and (1976) and Branti v. FinkelBranti v. Finkel, 445 , 445 U.S. 507 (1980), the Supreme U.S. 507 (1980), the Supreme Court ruled that the First Court ruled that the First Amendment prohibits government Amendment prohibits government officials from discharging public officials from discharging public employees solely for not being employees solely for not being supporters of a political party in supporters of a political party in power.power.

Newly-elected county officials Newly-elected county officials generally cannot fire existing generally cannot fire existing office staff due to political office staff due to political affiliation. 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 You must document in your

records the conduct that led torecords the conduct that led to

the termination.the termination.

Don’t give positive performanceDon’t give positive performance

evaluations if you don’t mean it.evaluations if you don’t mean it.

Check to see if your countyCheck to see if your county

uses “certificates of appointment.”uses “certificates of appointment.”

Iowa Code section 331.903(2).Iowa Code section 331.903(2).

Before terminating an employee, Before terminating an employee, county officials need to consider:county officials need to consider:

Is the employee covered by a collective Is the employee covered by a collective bargaining agreement?bargaining agreement?

Is the employee a veteran?Is the employee a veteran?

Is the employee covered by an written Is the employee covered by an written employment contract?employment contract?

Is the employee being terminated for a Is the employee being terminated for a reason contrary to public policy?reason contrary to public policy?

Cont’dCont’d

Is the employee protected by any Is the employee protected by any special statute such as the whistle special statute such as the whistle blower statute?blower statute?

Is the employee being terminated Is the employee being terminated due to his/her age, religion, sex, due to his/her age, religion, sex, disability or race?disability or race?

Is the termination prohibited by the Is the termination prohibited by the county’s employee county’s employee handbook/personnel policies?handbook/personnel policies?

Go back and check on two Go back and check on two things:things:

Do you use written job Do you use written job application forms for all county application forms for all county positions, and do those job positions, and do those job applications ask if someone is a applications ask if someone is a veteran?veteran?

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