By Kevin Sturm, Sturm & Cont, PA
During the past year, the labor hotline provided by the South Carolina Municipal Insurance and Risk Financing Fund
received numerous calls regarding employment-related issues. While the factual scenarios involved with each case vary widely, several themes emerged that impact all municipal employers.
1. ADA/FMLA/Workers Compensation issues
When an employee is injured or is unable to work due to some health condition, it is imperative that employers evaluate the situation and potential leave of absence under all three laws. Employers should do this evaluation at the beginning of an employee's leave-not after the employee has been out of work for an extended period of time. Also, employers should evaluate and consistently apply their municipality's handbook policies related to leaves of absence.
Employers should make every effort to ensure employees" rights are protected and appropriate leave is approved.
2. Medical inquiries of applicants and employees
All employers should be mindful of the fact that once an employee begins work, he may only be required to submit to medical examinations, which include drug/alcohol tests, under limited circumstances. Once a conditional offer of employment is made but before the employee begins work, an employer generally may require an applicant submit to medical inquiries such as taking drug/alcohol tests and responding to medical questions
Unlike private employers, public employers" relationship with their employees is impacted by constitutional protections which include prohibitions against unreasonable searches and seizures. In addition, the ability to require medical examinations/drug tests of employees are limited by the Americans with Disabilities Act.
Prior to administering or requiring any medical examination/drug test of an employee, employers need to evaluate the legal basis for requiring such tests.
3. Employee status under the FLSA
Employers must properly identify employees as either exempt or nonexempt under the overtime provisions
of the Fair Labor Standards Act. Neither the employee's title nor written job description determines the employee's status. The status is determined primarily by the employee's actual job duties and what discretion/decision making authority the employee exercises in performing his job.
Failure to properly classify an employee can have significant consequences, including the possibility of having to correct improper wage payments for a period of two or even three years.
An additional issue often raised in connection with an employee's classification is the proper use of compensatory time in lieu of overtime for nonexempt employees. This is an option that is only available to public employers and is often misunderstood.
The use of compensatory time also has both pros and cons. An employer should carefully evaluate using compensatory time as opposed to paying overtime when it is earned. Public employers that utilize comp time should ensure that they fully understand its requirements and limitations.
4. What is compensable work time under the FLSA?
Obviously, all employees must be paid for the hours they work; however, there are often questions about what is compensable work time. Issues arise regarding off-duty volunteers, travel time, training time and time spent attending "off-duty" functions.
Employers should carefully evaluate and control when employees are performing work-related functions. If time is spent in mandatory activities, such as training, then time associated with such an activity is compensable. Other factors will affect whether time spent in traveling is compensable. Employers should consult with legal counsel to ensure that they are properly paying employees.
5. Off-duty misconduct
The hotline often receives calls related to employees engaged in misconduct while off the job.
Questions arise as to whether an employer can discipline or discharge employees as a result of non-work related misconduct. The answer depends on the specific situation, but in general, employers can discipline and discharge an employee for off-duty misconduct.
How to investigate, implement and administer disciplinary action can be problematic. Due to a number of potential legal issues, employers should take great care when disciplining and/or discharging employees for off-duty misconduct.
As a member benefit, the employment and labor hotline is available to municipalities participating in the Association's property and liability insurance program (South Carolina Municipal Insurance and Risk Financing Fund
). Members receive 10 free hours per year to be used for a single question or issue or for a series of small questions or issues over the course of the year.
Kevin Sturm is partner with the Spartanburg-based firm of Sturm & Cont, P.A. and serves as the lead labor hotline attorney.