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Personnel

Below are some frequently asked questions and other selected inquiries that MRSC has received related to local government personnel issues. Click on any question to see its answer.



With the change in the minimum wage rates and requirement to provide paid sick leave, how do we address sick leave for seasonal employees?
Reviewed: 05/17

Beginning January 1, 2018, RCW 49.46.210 will require that every employer provide each of its employees with at least one hour of paid sick leave for every forty hours worked as an employee.

RCW 49.46.010(3) then defines, for the purposes of chapter 49.46 RCW, “employee” to mean “any individual employed by an employer” but then lists 16 exceptions. See RCW 49.46.010(3)(a)-(p).

So, if the seasonal employees at issue are covered by RCW 49.46.010(3)’s definition of “employee,” and none of the exceptions apply, then I think that your city would, beginning in 2018, need to provide paid sick leave to those employees at a rate of at least one hour of paid sick leave for every forty hours worked as an employee.

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When does an employee become eligible for unemployment benefits?
Reviewed: 01/17

Regarding eligibility for unemployment benefits, page 9 of the state Employment Security Department’s (ESD) Handbook for Unemployed Workers does a great job summarizing the requirements. According to the ESD, some of the key requirements are that one must be:

  • Employed for at least 680 hours in their base year in covered employment.
  • Unemployed for reasons that are not their fault.
  • Able to and available for work.
  • Actively seeking suitable work.
  • Legally authorized to work in the United States and have been authorized to work during their base year.

The appendix to the handbook then goes on to define the words and terms highlighted in bold above.

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If a position has a salary range from $43,400-$56,600, can the local government maintain the position as FLSA-exempt under the newly-revised DOL regulations that change the salary test for exempt employees?
Reviewed: 09/16

The new Department of Labor (DOL) rule, effective on December 1, 2016, raises the salary threshold to qualify to be exempt from FLSA overtime requirements to $47,476 annually, no matter the duties the employee performs. So, whether an employee paid in the salary range of $43,400-$56,600 is exempt depends on where exactly within that salary range they are paid. At a minimum they must be paid more than $47,476 to be FLSA-exempt. If the salary of an employee in that position reaches $47,476, they could then be exempt, if they meet the duties test.

For more information on this new rule, see the MRSC blog posts, New Overtime Rule Issued for White Collar Workers and New FLSA Regulations Proposed Regarding Who is Subject to Overtime.

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Is an employee entitled to an additional 12 weeks of leave for the birth of her second child if it occurs within the same 12 months as the birth of her first child (for which she took 12 weeks of leave)?
Reviewed: 08/16

The Family Medical Leave Act (FMLA) entitles employees to only one 12-week period of leave during any 12-month period, regardless of how many qualifying events there are. So, if she has already used her 12 weeks of leave for the current 12-month period, she can't use more FMLA leave during that same 12 months. She will have to wait until the next 12-month leave commences before being eligible for more FMLA leave.

29 CFR §825.200(a) states:

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

  1. The birth of the employee's son or daughter, and to care for the newborn child;
  2. The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;
  3. To care for the employee's spouse, son, daughter, or parent with a serious health condition;
  4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,
  5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty).

(Emphasis added.)

There are options for how an agency measures the 12-month FMLA leave. Note, the 12-month measurement period has to be the same for all employees. You can measure it by: (1) calendar year; (2) a fixed 12-month period; (3) the 12-month period measured forward; (4) the 12-month period measured backward.  This US Department of Labor Fact sheet on measuring the 12-month period details the various options.

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Must employees be required to take a 30-minute lunch break if they work an eight-hour shift?
Reviewed: 08/16

You have inquired whether there is a requirement that employees take a lunch break or whether they can decide to skip lunch and then leave early.

A state regulation, WAC 296-126-092, states that employers, including public employers, must allow employees a meal period of at least 30 minutes, to begin between two and five hours after the beginning of a shift. So, under this regulation, an employer cannot require that employees work without a lunch break.

However, RCW 49.12.187 allows employees, individually or through collective bargaining, to enter into "employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods." So, employees may voluntarily choose to combine their meal and rest periods, or even forego a meal period, as long as the employer consents.

We recommend that any such agreement be in writing and state that the employee has voluntarily agreed, pursuant to RCW 49.12.187, to deviate from the 30-minute lunch break period described in WAC 296-126-092, to allow the employee to shorten his or her work day by 30 minutes. 

Note that an employer is not obligated to enter into such an agreement with employees, as it may not be an advantageous arrangement for the employer.

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Under the Fair Labor Standards Act (FLSA) and state law, can overtime pay for nonexempt salaried employees be applied as compensatory time (at time and a half) if that is stated in the agency's policy manual, or does it have to be paid out? Is this the same for nonexempt hourly paid employees?
Reviewed: 07/16

The FLSA, specifically 29 U.S.C. Sec. 207(o), and FLSA regulations (see, e.g., 29 C.F.R. Sec. 553.22, .23, .25, .27, .28, and .50) address the use of comp time under federal law. Under these laws and regulations, a public agency may provide for comp time to its employees as long as comp time is provided for under a collective bargaining agreement, employment agreement, or memorandum of understanding. The agreement can be made in one of three ways: through negotiation with individual employees; through negotiation with employees' representatives; or through negotiation with a recognized collective bargaining agent.

Comp time under state law is governed by RCW 49.46.130(2)(b), which exempts from overtime pay requirements "[e]mployees who request compensating time off in lieu of overtime pay." A related administrative regulation, WAC 296-128-560, provides:

The provisions of chapter 49.46 RCW requiring one and one-half times the regular rate of pay for hours worked in excess of 40 per week does not apply to any person who requests compensating time off in lieu of overtime pay. Therefore, compensating time may be as agreed upon by the employer and the individual employee at the request of the employee, but may not be imposed by the employer in lieu of overtime pay upon any employee who has not so requested such compensating time off.

So, under RCW 49.46.130(2)(b) and WAC 296-128-560 and consistent with federal law, a public employer and employee may agree on comp time in lieu of overtime pay at the request of the employee. As such, the agency can have a policy that allows the employee to request comp time in lieu of overtime pay, but the agency cannot unilaterally decide that an employee must take comp time in lieu of overtime pay.

Also of interest on this topic, more generally, may be the Overtime Pay section on our Fair Labor Standards Act page.

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What makes an employee an exempt employee vs. non-exempt? Must exempt employees have staff under them or can they have no one reporting to them and still be exempt?
Reviewed: 05/16

Regarding the factors that are considered in distinguishing between an exempt vs. a non-exempt employee, the section on Overtime Pay in our Fair Labor Standards Act page, provides a good summary on that issue.

Regarding your second question, a determination related to whether an exempt employee must supervise staff to be exempt depends on the exempt employee category at issue. For example, as explained in our blog post referenced above (emphasis in original):

Each exempt category of employment has its own duties test; for example, to qualify as exempt, an executive employee's primary duty must be managing the organization, or managing a customarily recognized department or subdivision of the organization. 29 CFR 541.100. (FLSA regulations discuss what is meant by "primary duty" (29 CFR 541.700) and give examples of what may be considered to be "management" duties (29 CFR 541.102).) The executive must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent and have the authority to hire or fire other employees, or the executive employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight. (See 29 CFR 541.105 for an explanation of what is meant by "particular weight.")

An administrative employee is exempt if the employee’s primary function is to perform office or non-manual work, directly related to the management or general business operations of the employer or the employer’s customers, that includes the exercise of discretion and independent judgment with respect to matters of significance. 29 CFR 541.200. FLSA regulations provide guidance as to what is meant by "directly related to the management or general business operations"(29 CFR 541.201), "discretion and independent judgment" (29 CFR 541.202), and give examples of the administrative exemption (29 CFR 541.203).

The new FLSA regulations that revised the salary level to qualify as an exempt employee and that were scheduled to take effect on December 1, 2016 do not affect the duties test. See New FLSA Overtime Rules Put on Hold.

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May a local government provide in its personnel policies that accrued vacation leave will be paid off at the time of termination or retirement unless the termination is for cause, in which case no vacation payout will be made?
Reviewed: 05/16

Yes, a local government does have this authority. There are no provisions in state law that mandate what the terms of a vacation policy are for a local government. However, a local government's personnel policies should clearly spell out the terms under which vacation is granted, including those related to vacation payout at the time of termination.  

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To what extent can the district have a special event to recognize staff members' accomplishments via rewards of some type?
Reviewed: 04/16

Our general response to these types of questions is "it depends." You will always be on more solid legal ground in making such expenditures if your governing body has adopted, in advance, a policy stating that employees will receive, as a part of their compensation, recognition in the form of an event and/or award to honor accomplishments, length of service, or retirement. If the award or event is properly authorized in a policy of the governing body and includes standards as to how it is applied, then it should be allowable. See the employee recognition section of James Pharris' memorandum Eating and Drinking at Public Expense for a more in-depth discussion of this issue. Mr. Pharris' memorandum was written some time ago but is still considered to be good advice on this subject.

An alternative if you don't already have a policy in place would be to simply take up a collection to pay for light refreshments and/or a plaque or some other symbol of recognition.

We have a webpage devoted to Employee Recognition and Suggestion Award Programs. The page sets out some general information and contains links to local government programs that provide for employee rewards.

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Under what authority did the Seattle City Council raise the minimum wage?
Reviewed: 12/15

Seattle's minimum wage ordinance was passed under its police power authority to provide for the general health and welfare of its residents and other persons employed within the city. See article 11, section of the state constitution. The ordinance cites its promotion of "the general welfare, health, and prosperity of Seattle by ensuring that workers can better support and care for their families and fully participate in Seattle's civic, cultural, and economic life."

Additionally, the state legislature has specifically authorized local governments to enact more stringent minimum wage standards; RCW 49.46.120 states as follows:

This chapter establishes a minimum standard for wages and working conditions of all employees in this state, unless exempted herefrom, and is in addition to and supplementary to any other federal, state, or local law or ordinance, or any rule or regulation issued thereunder. Any standards relating to wages, hours, or other working conditions established by any applicable federal, state, or local law or ordinance, or any rule or regulation issued thereunder, which are more favorable to employees than the minimum standards applicable under this chapter, or any rule or regulation issued hereunder, shall not be affected by this chapter and such other laws, or rules or regulations, shall be in full force and effect and may be enforced as provided by law.

Note that Seattle's was not the first local minimum wage law in the state; SeaTac enacted one by the initiative process, though it was more limited in its scope than what Seattle's council later enacted. The SeaTac ordinance survived a challenge in the state courts. See Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770 (2015). The Seattle ordinance was unsuccessfully challenged in federal court, but not upon the grounds that Seattle did not have the authority to enact minimum wage requirements. See Int'l Franchise Ass'n v. City of Seattle (9th Cir. 2015).

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Can exempt staff be given compensatory time? Can it be posted on an hour-for-hour basis?
Reviewed: 11/15

Yes, exempt staff can be given compensatory time. The Washington State Public Employer Overtime Guide has the following to say on the subject:

Comp time for exempt personnel Many Washington employers have formal or informal policies of paying comp time to exempt personnel. As a basic matter, an employer is free to set any terms concerning accrual and use of comp time for employees not covered by the FLSA . . . . The Ninth Circuit, the Department of Labor and the Washington Supreme Court (interpreting the Washington Minimum Wage Act) have all concluded that comp time on top of salary is legal.

Public employers' authority to set their own terms governing the payment of comp time to exempt employees, as stated above, appears to stem from 29 C.F.R. §§ 553.28(c), (d), and (e).

Generally, the FLSA, at 29 U.S.C. § 207(o), limits the amount of comp time that non-exempt employees can be given. However, FLSA exempt employees are not subject to these limitations because the FLSA does not provide for exempt employee comp time. Instead, pursuant to 29 C.F.R. § 553.28(c), exempt employee comp time would likely be considered to be "other" compensatory time, because it is accrued pursuant to a policy adopted by the employer, rather than from a provision of the FLSA. Specifically, 29 C.F.R. § 553.28(e) states that:

The requirements of section 7(o) [i.e., 29 U.S.C. § 207(o)] of the FLSA, including the limitations on accrued compensatory time, do not apply to "other" compensatory time as described above.

So a public employer is free to set its own procedure governing comp time given to exempt employees. Once adopted, any such procedure should be clearly outlined in the employer's personnel policy.

It also appears that comp time for exempt employees can be posted on an hour-for-hour basis. 29 C.F.R. § 553.28(d) states as follows:

The FLSA does not require that the rate at which "other" compensatory time is earned has to be at a rate of one and one-half hours for each hour of employment. The rate at which "other" compensatory time is earned may be some lesser or greater multiple of the rate or the straight-time rate itself.

The city of Edmonds, allows exempt employees to earn comp time:

  • Edmonds Personnel Policy Section 4.4, Compensatory Time
  • Edmonds Municipal Code Section 2.20.020, Application of personnel policies to exempt employees

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Is it legal to pay an independent contractor an hourly rate less than minimum wage?
Reviewed: 11/15

Independent contractors are exempt from minimum wage requirements. See RCW 49.46.010(3)(d) defining "employee" for purposes of the state minimum wage act, to specifically not include "[a]ny individual engaged in the activities of an . . . local government body . . . where the employer-employee relationship does not in fact exist . . ."

As stated by the Department of Labor and Industries (L&I) in its administrative policy on the Minimum Wage Act Applicability, "A bona fide independent contractor is exempt from the MWA (Minimum Wage Act) because that person is not 'employed' by an employer."

The critical thing here is to make sure that the individual is truly an independent contractor. The test for whether someone is an independent contractor depends to a great extent on the amount of control the employer has over the worker. Some guides that may be of use to you (in the event you are unsure whether a worker is an employee or an independent contractor) are:

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Can a local government request or require access to a job candidate's Facebook page as part of its hiring process?
Reviewed: 11/15

No, that cannot be done. Pursuant to RCW 49.44.200(1), an employer, including a public employer, may not:

  • Request, require, or otherwise coerce an employee or applicant to: (1) disclose login information for personal social networking accounts; or (2) access their account in the employer's presence in a manner that enables the employer to observe the contents of the account;
  • Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the account;
  • Request or require an employee or applicant to alter the settings on the account that affect a third party's ability to view the contents of the account; or
  • Take adverse action against an employee or applicant for refusal to provide login information, access the account in the employer's presence, add a person to contact lists, or alter the account settings.

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Do former employees have a right to review their personnel files? Would they be allowed to make copies or have the opportunity to respond to anything in their files?
Reviewed: 05/15

We have opined that an ex-employee has a statutory right, as described below, to review his/her personnel file for a two-year period after his/her employment with the city has terminated. A key provision in this regard is RCW 49.12.250, which provides, in part:

3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

The reference to retaining the right of rebuttal or correction must be considered in the context of the other provisions of RCW 49.12.250, which provide, related to an employee's personnel file:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the file(s).
(2) An employee annually may petition that the employer review all information in the employee's personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer's determination, the employee may at his or her request have placed in the employee's personnel file a statement containing the employee's rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

In order for the right of rebuttal or correction referenced in RCW 49.12.250(3) to be meaningful, a former employee would need to be able to review the contents of the file to possibly rebut or correct information in that file. So, for a two-year period after an employee has concluded his/her employment with the city, that employee retains the right to review his/her personnel file, in accordance with RCW 49.12.250 (and RCW 49.12.260, - see below).

Note that there are limitations on an employee's right of inspection related to his/her personnel file. Presumably, those same restrictions apply as well to former employees. RCW 49.12.260 provides:

RCW 49.12.240 and RCW 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and RCW 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

Once the two-year period referenced in RCW 49.12.250 expires, there's no specific provision allowing a former employee the right to inspect his/her personnel file. The plain meaning of the term "employee" in this context refers to someone working for the city and doesn't seem to include someone who formerly worked for the city. The definition is included in RCW 49.12.005, as follows:

(4) "Employee" means an employee who is employed in the business of the employee's employer whether by way of manual labor or otherwise.

So, after the two-year time period, a former city employee would have the same right of inspection of city records as any other person under the Public Records Act (PRA) (chapter 42.56 RCW). As a practical matter, the city could choose in such a situation to allow a former employee broader access to his/her own personnel file, but the city wouldn't be legally required to.

You also asked whether the city can allow a former employee to make copies of records in his/her personnel file. Based on the provisions referenced above, specifically RCW 49.12.240 and RCW 49.12.250 and RCW 49.12.260, we think the city can make copies of records in a former employee's personnel file and make those records available to that former employee, as long as the city complies with RCW 49.12.250, RCW 49.12.260, and the PRA. If the city is making the records available in response to a PRA request, the city would need to review the records to determine if any exemptions under the PRA apply to any information in any records that are responsive to such a PRA request.

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Who has the authority to designate leave as FMLA leave - the employer or the employee?
Reviewed: 08/14

This question addresses the situation where an employee takes leave as something other than FMLA leave, even though the circumstances would qualify it as FMLA leave. Can the city require that the leave be designated as FMLA leave, rather than as, say sick leave?

Although it previously appeared that a city could require employees to use FMLA leave, the Ninth Circuit recently held otherwise. In Escriba v. Foster Poultry Farms, the Ninth Circuit held that simply referencing an FMLA-qualifying reason does not trigger FMLA protections—instead the employee must explicitly assert whether or not they are seeking FMLA leave in a case involving leave to care for a family member.

Therefore, at least in the case of an employee seeking leave to care for a family member, the employee cannot be forced to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

In addition, a strong argument can be made that in other contexts—such as leave for the employee's own medical conditions—the employee also retains the right to decline to use FMLA leave.

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May an employee receive pay from sick leave at the same time he or she receives workers compensation disability pay?
Reviewed: 08/14

Yes. The proviso in RCW 51.32.090(8), added in 2007, provides:

(8) Should a worker suffer a temporary total disability and should his or her employer at the time of the injury continue to pay him or her the wages which he or she was earning at the time of such injury, such injured worker shall not receive any payment provided in subsection (1) of this section [which provides for workers’ compensation payments] during the period his or her employer shall so pay such wages: PROVIDED, That holiday pay, vacation pay, sick leave, or other similar benefits shall not be deemed to be payments by the employer for the purposes of this subsection.

(Emphasis added.)

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Does the new state law requiring all political subdivisions of the state provide employees with two unpaid holidays a year apply to water-sewer districts?
Reviewed: 07/14

Yes. The law (SSB 5173) provides that employees of the state and its political subdivisions are entitled to two unpaid holidays per calendar year for reasons of faith and conscience or an organized activity conducted under the auspices of a religious denomination, church of religious organization. The only exceptions are "employees of school districts and except those nonclassified employees of institutions of higher education who hold appointments or are employed under contracts to perform services for periods of less than twelve consecutive months."

Water-sewer districts are political subdivisions of the state, as are cities, counties, and other special purpose districts (other than school districts). The new law applies to all these units of local government.
 

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Can local governments require their employees to take the time off provided for under SSB 5173 as vacation time rather than as unpaid holiday time?
Reviewed: 07/14

We don't think local governments can impose such a requirement. Note that SSB 5173 provides that employees "are entitled to two unpaid holidays per calendar year." We interpret "entitled" in this context to mean days in addition to vacation days. Also, since the new language (see above) refers explicitly to "holidays," we interpret this to mean that such holidays are other than vacation days (or other types of leave).

In an effort to assist local governments in implementing this new law, we have prepared a Model Policy for Unpaid Holidays for Reasons of Faith or Conscience (5/20/14). 
 

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How are "days" calculated with regard to new law authorizing two unpaid holidays for reasons of faith or conscience or organized religious activity?
Reviewed: 06/14

Legislation (SSB 5173) passed during the 2014 session entitles local and state government employees to two unpaid holidays per calendar year "for reasons of faith or conscience or for an organized activity conducted under the auspices of a religious denomination, church, or religious organization." The legislation does not, however, define what is a "day" in the context of an unpaid holiday. Can the city count it as an eight-hour work period, the "normal" number of work hours in a day?

It's our opinion that, since the statute does not define what is a "day" in the context of these unpaid holidays, this issue should be analyzed in the same way that the Attorney General's office analyzed what a "day" is in the context of the 21 days of military leave provided under RCW 38.40.060. In AGO 1999 No. 2, the AG concluded that a "day" in that context - where also not defined - means a calendar day, a 24-hour day beginning and ending at midnight.

We believe this is also the way local governments have interpreted the "floating" holiday authorized, since 1976, by this same statute.

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We are looking to revise our work attire and personal appearance policy to address tattoos and body piercings. Is there anything we need to be especially sensitive to with respect to discrimination issues when developing the policy?
Reviewed: 03/14


The city may adopt a personnel policy that imposes restrictions on body-piercing and tattoos (see examples below), but it's possible that, in a particular instance where the body-piercing or tattoo implicates a sincerely held religious belief, the city may have to make a reasonable accommodation with respect to that policy. The general rule is that employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer. As stated in the Guide to Dress Codes and Washington State Nondiscrimination Laws, Washington State Human Rights Commission (date?):

Sometimes a sincerely held religious belief will conflict with employer dress codes regarding, clothing, head covers, jewelry, beards, and hair length. In order to avoid religious discrimination, an employer may need to exempt the employee from the dress code or grooming standard as a reasonable accommodation. In order to receive a reasonable accommodation from an employer, the employee must have a sincerely held religious belief and put the employer on notice that the religious belief conflicts with a workplace rule. Once that occurs, the employer and employee must enter into an interactive process to find a reasonable accommodation, unless an accommodation would create an undue hardship for the employer. An undue hardship means anything more than a minimal cost.

Here are some other resources that address this issue:

And here are some examples of personnel policies from cities in this state that address body-piercing and tattoos:

  • Port Angeles Personnel Policies and Procedures, Sec. 2.14, City Dress Code:
    Work clothes and grooming may not be overly faddish or extreme, based on community and social acceptability, as determined by supervisors, on a case--by-case basis. This includes body piercing and tattoos that may be depicting negative or offensive images or words. These may be allowed if covered by clothing.
  • City of Poulsbo Personnel Handbook, Sec.9.16, Work Related Appearance: "Accessories should be in good taste, with limited visible body piercing and no visible tattoos that may be offensive to others." 
  • City of Vancouver Employment Policies, Sec. 311, Personal Appearance of Employees:
    Are visible tattoos, jewelry or body piercing(s) permitted at work?

    The City prohibits any visible tattoo that is offensive. "Offensive" tattoos include, but are not limited to, any body tattoo or decal depicting nudity, violence, sexually explicit or vulgar art or words, or that is objectionable or demeaning to the image of the City. In general, if the City's other policies (e.g., Harassment Prevention) or Operating Principles (e.g., Respect) would prohibit the speaking of the words, or display of the art, in the workplace then the tattoos, jewelry or body piercing(s) may not be visibly worn at work. Employees may wear jewelry or body piercing(s) that does not detract from the overall professional appearance.

    Supervisors have the sole discretion to decide whether visible tattoos, jewelry or body piercing(s) are appropriate for the job position.

 

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Our police officers are allowed to take their police cars home with them. Are we supposed to be charging them for this benefit somehow in their payroll?
Reviewed: 02/14

The answer is "it depends." As discussed in the IRS publication, Taxable Fringe Benefit Guide: Federal, State, and Local Governments (January 2014), starting at page 54, marked police vehicles used by police officers to take home could qualify as a "nonpersonal use vehicle" ("any vehicle that the employee is not likely to use more than minimally for personal purposes because of its design") and not be taxed as a fringe benefit if the following conditions are met:

  • The employee must always be on call. 
  • The employee must be required by the employer to use the vehicle for commuting.
  • The employer must prohibit personal use (other than commuting) for travel outside of the officer or firefighter's jurisdiction.

There are also rules discussed in this publication for unmarked police vehicles.

If a police officer’s use of a police vehicle to take home does not meet the above conditions and is considered for “personal use,” then that use is considered a taxable fringe benefit.

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Where a city has 12 full-time employees and wishes to hire a part-time, 20-hour per week employee, does the city have to provide benefits (medical and others) for that part-time employee? Is this analysis impacted at all by the Affordable Care Act?
Reviewed: 02/14


No. The city is not required to provide any particular benefits to its employees, and when it does provide benefits, the city may distinguish between full- and part-time employees, providing benefits to the former but not the latter.

A city with fewer than 50 full-time employees is not impacted by the Affordable Care Act (ACA). Only "large" employers (those who have more than 50 full-time employees) are subject to the ACA's "employer mandate," requiring those employers to provide health coverage to their full-time employees. Full-time employees are defined as those who work an average of 30 hours per week. So, employers who have less than 50 full-time employees are under no obligation to provide health coverage.

 

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May an employee take intermittent leave under the Family and Medical Leave Act (FMLA) that, for example, would consist of 10 days at the birth of a child and then for a period of a month beginning six weeks later?
Reviewed: 11/13

Yes, with the employer's agreement.  "Intermittent leave "is defined in FMLA regulations as "leave taken in separate periods of time due to a single illness or injury rather than for one continuous period of time" (29 C.F.R.825.800) and as "FMLA leave taken in separate blocks of time due to a single qualifying reason "(29 C.F.R.825.202). The leave requested in this instance would appear to qualify as intermittent leave. Under 29 C.F.R.825.202,"When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees."

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Is there an established acceptable percentage level for salaries relative to the total general fund budget?
Reviewed: 11/13

There is no established "acceptable" percentage. Cities don't budget saying, "We'll spend x percent of the general fund on salaries/wages and benefits and the rest on everything else." Rather, the mayor proposes and the council adopts a budget that provides the services that reflect their view of the city's goals and priorities. In this budget there will be a certain amount of expenditures for salaries, wages, and benefits (labor costs). If "a lot" is being spent on labor costs, then there will be less to spend on such things as supplies and equipment. Maybe there will not be funds to do street repairs or some other project that the citizens want. The citizens may, if they disagree with this, vote for a different mayor and council that will reallocate resources.

The figure found in the Local Government Financial Reporting System on the State Auditor's Web site for the 2002-2004 general fund expenditures of all cities in Washington for salaries, wages, and benefits (labor costs) as a percent of general fund total expenditures comes to about 68 percent. This number mainly reflects the expenditures of the bigger cities since their budgets are so large they overwhelm those of smaller cities.

When we look at smaller cities by themselves, we find that the labor cost component of the general fund is usually much lower than the 68 percent reported for all cities. For example, for 2002-2004, in Washington cities with a population of between 500 and 1500, labor cost expenditures were actually closer to 45 percent of the general fund.

All these figures do is tell you what the average percentage is. If your city is much higher than the average, it is not necessarily a bad thing. By the same token, if your city is much lower than the average, it is not necessarily a good thing. There could by many good reasons for both situations. The most important question is whether the amounts that you are spending on labor costs make sense and can be justified in light of the particular service demands and preferences in your community.

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Which city employees are considered to be "at-will?"
Reviewed: 11/13

Most officers and employees of the city who are not covered by civil service or a union collective bargaining agreement are considered to be "at-will" officers or employees. This means that they can be terminated at the pleasure of the mayor without specific cause or reason.

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Is there any RCW/WAC or Public Employment Relations Commission (PERC) decision that dictates whether a city must continue to honor the terms of an expired collective bargaining agreement while both the city and union continue to bargain in good faith toward a new agreement?
Reviewed: 11/13

There is a statute that requires the agreement to remain in effect for no longer than one year after it expires, presumably during which period the city and the union would continue to bargain in good faith. RCW 41.56.123(1) provides as follows:

After the termination date of a collective bargaining agreement, all of the terms and conditions specified in the collective bargaining agreement shall remain in effect until the effective date of a subsequent agreement, not to exceed one year from the termination date stated in the agreement. Thereafter, the employer may unilaterally implement according to law.

That provision does not, however, apply to uniformed personnel; rather, RCW 41.56.470 does. Maple Valley Prof'l Fire Fighters Local 3062 v. King County Fire Prot. Dist. No. 43, 135 Wn. App. 749, 759 (2006), review denied, 161 Wn.2d 1011 (2007). That statute provides:

During the pendency of the proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under chapter 131, Laws of 1973.

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Is there a requirement that a city or town must advertise before hiring any employee?
Reviewed: 11/13

There is no general requirement in state law that a city or town must advertise before filling a position. A city may advertise, and this is often desirable, but it is not a legal requirement. If the city is aware of a qualified candidate, then that candidate may be offered the position.

If the position is covered by a labor contract, this should be reviewed to see if there are any applicable provisions. Also, if the position is covered by civil service, then the applicable civil service procedures must be followed. It is also advisable to review any local ordinances or administrative procedures that may specify hiring procedures.

In the absence of any local requirement, union contract, or civil service provisions requiring advertisement, the city would be free to follow whatever procedures it deems appropriate.

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May cities impose residency requirements for appointed officials?
Reviewed: 11/13

Cities with a mayor-council form of government may impose residency requirements for appointed officials, with the exception of those appointed through civil service; cities with the council-manager form may not. RCW 35.21.200 provides general authorization for residency requirements; it provides in part:

Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees, but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified . . . .

Officials appointed prior to such an ordinance being adopted may not be discharged based on lack of residency.

For council-manager cities, a more specific prohibition against imposing residency requirements applies. For code cities, RCW 35A.13.110 states with respect to appointments that "Residence within the code city shall not be a requirement." RCW 35.18.100 imposes the same prohibition on non-code council-manager cities.

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Can a city have a temporary appointment period for a police employee that is different than the four-month period under RCW 41.12.040(9)? More generally, can you provide examples of court decisions interpreting whether local rules substantially accomplish chapter 41.12 RCW?
Reviewed: 11/13

The civil service statutory provisions applicable to city police departments (see RCW 41.12.010) allow for some flexibility by permitting civil service rules that "substantially accomplish the purpose" of state law.

Regarding the four-month provision you mentioned related to provisional or temporary appointments in RCW 41.12.040(9), we are not aware of a published court decision or an attorney general opinion that has specifically addressed whether a provisional or temporary period different than four-months’ provision "substantially accomplishes" the purpose of RCW 41.12.040(9). However, it is our understanding that, in practice, several cities in Washington have adopted provisional or temporary periods greater than four months, most commonly six months and sometimes up to one year.

You also asked about court decisions specifically addressing city policies that substantially accomplish the purpose of chapter 41.12 RCW. Courts have upheld probationary periods different than the period of three to six months set forth in RCW 41.12.100. See, e.g., Samuels v. Lake Stevens, 50 Wn. App. 475 (1988), and Arbogast v. Westport, 18 Wn. App. 4 (1977) (upheld one-year probationary period). Courts have also upheld a "rule of three" and "rule of five" in certain situations finding that under those facts a rule of three (or five) substantially accomplished the "rule of one" set forth in RCW 41.12.040(9) and RCW 41.08.040(9). See, for example, Seattle Police Officers’ Guild v. City of Seattle, 151 Wn.2d 823 (2004) (upholding a "rule of five" for appointments); Fire Fighters v. Walla Walla, 90 Wn.2d 828 (1978) (approved a "rule of three" for civil service appointments). These court decisions provide an indication of the analysis a court may utilize in addressing this and similar issues related to what "substantially accomplishes" the purposes of chapter 41.12 RCW.

Note also that there is legal authority finding against local rules. See, e.g., Teamsters v. Moses Lake, 70 Wn. App. 404 (1993) (rule excluding noncommissioned employees from police civil service system did not "substantially accomplish" purposes of state law), and AGO 1986 No. 13 (city civil service system for police provided by charter does not substantially accomplish the purpose of chapter 41.12 RCW if it does not provide for any appeal in the case of an employee suspended for less than five days).

Another resource on such issues are the comments to the civil service model rules prepared by Steve DiJulio of the law firm Foster Pepper PLLC and published by the Washington Local Government Personnel Institute, a division of the Association of Washington Cities (AWC). The comments may provide some guidance in addressing certain situations, depending upon what rules the civil service commission already has in place.

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Can a temporary summer-hire firefighter continue to respond as a volunteer during off hours?
Reviewed: 11/13

An employee is not permitted under the Fair Labor Standards Act (FLSA to volunteer to perform the same types of services he or she is paid to perform. See 29 U.S.C. §203(e)(4)(A)(ii); 29 C.F.R. §553.102. Clearly, here, the employee would be performing the "same type of service" when volunteering. It does not matter that the employee here is temporary. So, any "volunteer" hours would have to be considered hours worked and would have to be paid.

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What is the legal definition of the term "confidential employee" as used in a job description?
Reviewed: 11/13

The term "confidential employee" has legal significance in the context of collective bargaining and is basically defined as an exception to the term "public employee" in RCW 41.56.030(2)(c); a "confidential employee" is an employee

whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to (i) the executive head or body of the applicable bargaining unit, or (ii) any person elected by popular vote, or (iii) any person appointed to office pursuant to statute, ordinance or resolution for a specified term of office as a member of a multimember board, commission, or committee, whether appointed by the executive head or body of the public employer.

In the context of state (not local agency) collective bargaining, there is a definition in RCW 41.80.005(4), and, in the context of higher education faculty labor relations, there is a definition in RCW 41.76.005(10). See also WAC 391-35-320 (PERC rule).

So, if the term is used in a job description in the collective bargaining context, the above is what it means. In other contexts, there is no legal definition.

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Is there a new test for determining what constitutes "nominal compensation" for purposes of volunteer status under the Fair Labor Standards Act?
Reviewed: 11/13

In regard to what is new on the question of what constitutes "nominal compensation" that can be paid to be a volunteer, there are several recent Department of Labor (DOL) letters that adopt a 20 percent rule - that is, DOL will presume that the fee paid to a volunteer is nominal if the fee does not exceed 20 percent of what the agency would otherwise pay for a full-time person who performs the same service. See the DOL letters below outlining this position:

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If the city has a reduction in force and one of the employees who would be released is on military assignment, can his position be terminated under USERRA?
Reviewed: 11/13

In our opinion, the city, or any local government employer, would not be required to re-employ the returning officer. As a general rule an employer must re-employ an employee who is serving on a military assignment. However, there are certain exceptions; 38 USC § 4312(d)(1)(A) (part of USERRA) states:

(d)(1) An employer is not required to reemploy a person under this chapter if -

(A) the employer's circumstances have so changed as to make such reemployment impossible or unreasonable;

(B) in the case of a person entitled to reemployment under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such employment would impose an undue hardship on the employer; or

(C) the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue
indefinitely or for a significant period.

(2) In any proceeding involving an issue of whether -

(A) any reemployment referred to in paragraph (1) is impossible or unreasonable because of a change in an employer's circumstances ...

In A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), the US Department of Labor states:

Changed circumstances Section 4312(d)(1)(A)).

Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example. (Emphasis added)

Thus, it appears that the city would not be required to re-employ the returning officer.

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May a veteran's preference be used more than once if the police officer was laid off from the first position he obtained by using the preference?
Reviewed: 11/13

No, it cannot; the credit can only be used once. RCW 41.04.010 provides in pertinent part:

[In scoring a civil service examination there shall be added]: (1) Ten percent to a veteran who served during a period of war or in an armed conflict as defined in RCW 41.04.005 and does not receive military retirement. The percentage shall be added to the passing mark, grade, or rating of competitive examinations until the veteran's first appointment. The percentage shall not be utilized in promotional examinations. . .

(Emphasis added.) Once the first appointment has been made, the credit is no longer available. There is no exception for a lay-off situation.

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Is there an online resource that spells out the Washington State and federal labor law posting requirements for employee information boards and that provides access to those posters?
Reviewed: 11/13

The Washington State Department of Labor & Industries (L&I) web page on Workplace Posters lists all of the posters that are required by state law. There is no charge for the posters and many, if not all, can be downloaded. Along with the state required posters, L&I's web site also links to required and recommended posters from other government agencies, which can also be downloaded at no cost.

Since the posters can be obtained at no cost to the city, it makes sense to post them at as many locations as is reasonably necessary to make sure that all city employees are informed of their state and federal rights as employees.

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May a full-time city employee in the public works department volunteer for the civilian police reserve?
Reviewed: 11/13

Yes, a full-time employee in the public works department may volunteer for the civilian police reserve. This question potentially implicates the Federal Fair Labor Standards Act (FLSA). The basic rule is this: an employee cannot volunteer to provide the same type of services he or she is employed to perform for that same agency without losing his or her volunteer status and triggering the protections of the FLSA. So for example a full-time fire fighter cannot volunteer to work as a volunteer firefighter for the same agency.

However, that does not seem to be a problem here. The person works for the public works department and so performs entirely different services from that performed by a reserve police officer. He/she should be able to serve as a true volunteer in the police reserve in the same city without raising FLSA issues.

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Must justification be stated if an at-will employee is terminated?
Reviewed: 11/13

MRSC recommends that a city not attempt to provide specific reasons for the discharge of the individual, but merely indicate that the termination is in the best interests of the city. If the city makes public allegations concerning the work performance or conduct of the individual in question, it is likely that the officer or employee would be entitled to a name-clearing hearing at the time of discharge.

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What if the city has adopted personnel policies or regulations concerning termination?
Reviewed: 11/13

If the city has adopted any specific personnel policies or regulations regarding termination, those policies may, in certain circumstances, amount to a type of contract right. A city would be bound to follow any such adopted procedures.

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What should a city do if there are specific instances of employee misconduct?
Reviewed: 11/13

Specific instances of misconduct should be documented in the personnel file of the officer or employee. Any verbal or written warnings given to an employee should also be documented. In the event that an employee or officer alleges that termination was due to improper or illegal reasons, then such a record could be important in order to justify the termination.

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May a city discharge an employee who is collecting workers' compensation pay?
Reviewed: 11/13

Yes. There is no general prohibition against discharging an employee receiving benefits under industrial insurance as long as the employee is unable to perform the job. If that were the case, cities would have to hold open positions indefinitely whenever an employee has been injured on the job. The State Department of Labor and Industries has indicated that it is not uncommon for an employee who is receiving workers' compensation benefits to be discharged if the employee is unable to perform that job or another job with the employer.

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Is a city subject to a claim of discrimination if it fires an employee who is collecting workers' compensation?
Reviewed: 11/13

RCW 51.48.025 prohibits an employer from discharging or in any manner discriminating against an employee because the employee has filed or communicated to the employer an intent to file a claim for compensation under Workers' Compensation. This is different from discharging an employee who is no longer capable of performing his or her job.

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Must city provide pre-termination hearing before terminating appointive official or employee?
Reviewed: 11/13

A pre-termination hearing is not required for non-civil service city officials and employees unless there is an implied or express agreement to the effect that the official or employee would be termi-nated only for cause. See Thompson v. St. Regis Paper Company, 102 Wn.2d 219, 685 P.2d 1081 (1984). However, MRSC recommends that a termination hearing be held as an added protection in case a lawsuit is filed alleging wrongful termination.

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Must an individual who is being terminated be paid immediately?
Reviewed: 11/13

No. There is a specific statutory provision which covers this subject. RCW 49.48.010 indicates that a terminated employee must be paid at the end of the next regular pay period. This means that the individual can be paid his last check at the same time as other city employees receive their checks. It is not necessary to cut an immediate check and pay the individual on the day of his termination.

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May the veterans' scoring criteria status be claimed in a civil service examination where it previously has been claimed and the person was thereby employed, even if employed by a different public employer?
Reviewed: 11/13

No, the veteran may not again use his or her scoring criteria status after it has been previously claimed and that person was hired based on the examination in which the status was claimed. The relevant statute is RCW 41.04.010, which provides as follows:

    In all competitive examinations, unless otherwise provided in this section, to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its political subdivisions and all municipal corporations, shall give a scoring criteria status to all veterans as defined in RCW 41.04.005, by adding to the passing mark, grade or rating only, based upon a possible rating of one hundred points as perfect a percentage in accordance with the following:

    (1) Ten percent to a veteran who served during a period of war or in an armed conflict as defined in RCW 41.04.005 and does not receive military retirement. The percentage shall be added to the passing mark, grade, or rating of competitive examinations until the veteran's first appointment. The percentage shall not be utilized in promotional examinations;

    (2) Five percent to a veteran who did not serve during a period of war or in an armed conflict as defined in RCW 41.04.005 or is receiving military retirement. The percentage shall be added to the passing mark, grade, or rating of competitive examinations until the veteran's first appointment. The percentage shall not be utilized in promotional examinations;

    (3) Five percent to a veteran who was called to active military service for one or more years from employment with the state or any of its political subdivisions or municipal corporations. The percentage shall be added to the first promotional examination only.

    The evident intent is to restrict the scoring criteria status so that, basically, it can only be used to obtain employment once. Once employment is obtained after claiming the status, it may not be used again. Also, it does not matter if the status was claimed and employment obtained with a different public agency.

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Has the Persian Gulf War officially ended for the purpose of qualifying as a "veteran" for a scoring criteria status?
Reviewed: 11/13

No, the time period for the veterans' scoring criteria outlined in RCW 41.04.005 has not been ended by official presidential proclamation or law. RCW 41.04.005 provides that the Persian Gulf War began on August 2, 1990 and will end on the date prescribed by presidential proclamation or law. So, veterans who served in the armed forces in the 1990's are eligible for the veteran's scoring criteria in most cases. The other restrictions in RCW 41.04.005 concerning eligibility still apply.

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Whether passage of Initiative 200, prohibiting "preferential treatment" based on race, sex, color, ethnicity, or national origin in public employment and contracting, affects the veterans' scoring criteria statutes?
Reviewed: 11/13

Passage of I-200 does not appear to affect veterans' preference in civil service employment based solely on status as a veteran, other than to cause the legislature to eliminate the word "preference." The initiative amends only chapter 49.60 RCW and covers preferential treatment on the basis of race, sex, color, ethnicity, or national origin. The veteran's preference statutes have a long history in Washington and may be required under federal laws and programs. Initiative 200 can be reconciled with the existing laws on veteran's preference based solely on status as a veteran.

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Is the veterans' scoring criteria status in RCW 41.04.010 mandated when hiring any city employee or just civil service employees?
Reviewed: 11/13

The scoring criteria status in RCW 41.04.010 applies only to hiring for civil service positions. This statute provides in relevant part as follows:

 

  • In all competitive examinations, unless otherwise provided in this section, to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its political subdivisions and all municipal corporations, shall give a scoring criteria status to all veterans as defined in RCW 41.04.005 . . .

Since civil service hiring involves competitive examinations, this preference clearly applies to civil service. Further, RCW 41.08.040 and 41.12.040 mandate the veterans' credit in RCW 41.04.010 for police and fire civil service hiring procedures.

Although it can be argued that this scoring criteria would also apply where a city uses competitive examinations in non-civil service hiring, it does not appear that it would apply in that context. The statutory intent apparently was for it to apply only where competitive examinations are required by statute.

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Does a veteran have to have actually fought in a war to receive scoring criteria points?
Reviewed: 11/13

Veterans who served during a "period of war," as that is defined in RCW 41.04.005, need not have served in a combat zone or hostile environment to qualify; simply being in the armed forces during a such a period, in addition to not receiving military retirement, is sufficient. Veterans who served in an "armed conflict," as defined by RCW 41.04.005, and received a campaign badge or medal, and who do not receive military retirement, also qualify in this category. In addition, in 2002 the Legislature amended the definitions set out in RCW 41.04.005 to include certain veterans who served during times of peace.

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Does an applicant who is currently serving in the reserves and was activated in support of Operation Iraqi Freedom for one year fit the definition of “veteran” in RCW 41.04.007(3) because the applicant was deployed for more than 180 days? Does an applicant who is currently serving in the reserves and has twice been called to active duty for training (basic and advanced training for 6 months and 17 days; officer basic course for 4 months and 24 days) qualify as a "veteran"?
Reviewed: 11/13

First one must look at the statute. RCW 41.04.007 defines the term “veteran” as follows:

"Veteran" includes every person, who at the time he or she seeks the benefits of RCW 46.16.30920, 72.36.030, 41.04.010, 73.04.090, 73.04.110, 73.08.010, 73.08.070, 73.08.080, or 43.180.250 has received an honorable discharge or received a discharge for medical reasons with an honorable record, where applicable, and who has served in at least one of the following capacities:

(1) As a member in any branch of the armed forces of the United States, including the national guard and armed forces reserves, and has fulfilled his or her initial military service obligation;

(2) As a member of the women's air forces service pilots

(3) As a member of the armed forces reserves, national guard, or coast guard, and has been called into federal service by a presidential select reserve call up for at least one hundred eighty cumulative days . . .

The test for being a veteran under this statute is two-part: to qualify, the applicant 1) must have received an honorable discharge or received a discharge for medical reasons with an honorable record and 2) his or her service must satisfy one of the requirements set out in subsections (1) through (6).

As to the first applicant, if the person has been discharged from service, he or she would qualify (and if not, he or she would not qualify).

As to the second applicant, the person satisfies the second part of the test, since the he or she was called to active duty and has served as a member of the armed forces reserves for at least 180 days. The second requirement has been met, even though the call up was only for training. Of course, to qualify, the person also must be discharged from service (honorably or for medical reasons with an honorable record). If that element of the test has not been met, it would not matter that the second element has been satisfied. If the person has been discharged, the test would be met and the person would qualify as a “veteran.”

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When is the holiday taken if it falls on a Saturday or a Sunday?
Reviewed: 11/13

If the holiday falls on a Saturday, it should be taken on the preceding Friday; if the holiday falls on a Sunday, it is taken the following day, on Monday. See RCW 1.16.050.

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Is it necessary for a city, town, or county to provide rest periods for employees?
Reviewed: 11/13

Yes.  A Department of Labor and Industries regulation provides that employees are to be given a "rest period" of not less than 10 minutes, on the employer's time, for each four hours of working time.  WAC 296-126-092(4). However, this requirement does not apply "When the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked" (WAC 296-126-092(5)), or pursuant to the terms of a collective bargaining agreement or other employer/employee agreement (RCW 49.12.187). 

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May a city pay an employee severance pay if this is not provided in any employment contract or municipal personnel policy?
Reviewed: 11/13

MRSC has consistently advised that a lump sum severance payment is permissible only if it is authorized pursuant to a previously adopted personnel policy or employment agreement or contract. Otherwise, such a payment would probably constitute an illegal gift of municipal funds.

If there is a bona fide dispute regarding the circumstances of the employee's discharge, then it is possible that "severance pay" could be justified as a compromise of a claim brought against the city. There would have to be facts sufficient to support that justification, however. A gratuitous payment, not made either in response to a contractual obligation or as a compromise of a claim, would most likely be classified as a gift and thus be contrary to Article VIII, Section 7 of the State Constitution. See generally Attorney General Opinion 63-64 No. 9.

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May the city grant a year-end bonus to an employee if it has not been provided for in a specific policy?
Reviewed: 11/13

Bonuses to city employees, based on performance, may legally be given if the proper procedure is followed. It is a violation of the Washington State Constitution for a city to merely declare at the end of the year that a particular employee or class of employees will receive a year-end bonus if there has been no prior policy adopted by the city council establishing this as a compensation option.

However, if the city establishes in a policy or a clear written statement that a bonus for performance is a potential part of the compensation package, then a year-end bonus may be awarded if in fact the employee is evaluated as having performed at the agreed upon level. This policy does not have to be established at the beginning of the calendar year, but may be established later in the year.

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In a code city, can the salary of the city manager or city administrator be paid from both the general fund and a utility fund?
Reviewed: 11/13

Yes, and some other administrative salaries can also be split. RCW 35A.33.122 provides as follows:

Whenever any code city apportions a percentage of the city manager's, administrator's, or supervisor's time, or the time of other management or general government staff, for administration, oversight, or supervision of a utility operated by the city, or to provide services to the utility, the utility budget may identify such services and budget for reimbursement of the city's current expense fund for the value of such services.

See also RCW 43.09.210.

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What overtime regulations apply to a city with a police chief and two full-time police officers?
Reviewed: 11/13

The provisions of the federal Fair Labor Standards Act do not apply because the city employs less than five law enforcement officers. The overtime regulations of the Federal Fair Labor Standards Act only apply to municipalities which employ five or more officers in their police department (civilian reserve officers do not count towards this total). Since the city does not employ this many officers, there are no federal overtime regulations that must be met by the city.

However, the city still is covered by the state regulations that apply to overtime. These regulations are contained in the Washington State Minimum Wage Law, Ch. 49.46 RCW. This Act does contain mandatory provisions regarding overtime pay for most city employees, including police.

However, the police chief is not covered by the provisions in the state Minimum Wage Act. There is an exemption in RCW 49.46.010(5)(l) for:

Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi-municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature.

It is clear that the city police chief is an appointive officer of the city and so is exempt from the mandatory overtime regulations in state law as well as federal law. It is a matter of city policy whether and when to grant overtime or compensatory time to the police chief.

The two regular police officers of the city are covered by the overtime laws. The city must pay overtime to these police officers when they exceed the number of hours set out in state law regarding overtime. For most city personnel, the overtime laws apply when the employee works over forty hours in a week. However, state law does give the city more flexibility with regard to overtime for police officers (and fire fighters) than it does for other city personnel. The city can balance police officer's hours over a work period that is longer than one week or seven days. The work period cannot be less than seven consecutive days or more than twenty-eight days. RCW 49.46.130(2) provides that if the work week is twenty-eight days, no overtime compensation is required until the hours worked exceed two hundred and forty hours. If the work period is more than seven days, but less than twenty-eight days, no overtime compensation is required until the ratio between the number of days in the work period and the hours worked exceed the ratio between the work period of twenty-eight days and two hundred and forty hours.

In essence, state law appears to allow a city to establish a seven-day work period with a sixty-hour work week for city police without being required to pay overtime compensation. Any hours worked in excess of sixty hours in a week must be compensated at an overtime rate not less than one and one-half times the regular rate of pay for the officer.

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How does paid leave interact with unpaid FMLA leave?
Reviewed: 11/13

Generally FMLA leave is unpaid. However, an employee can request that they be allowed to use accrued paid sick leave or vacation leave and then this leave runs concurrently with the FMLA leave. Also, an employer may require that the employee use paid leave so that the employee cannot take 12 weeks of unpaid leave and then use additional vacation and sick leave during the same year. So when either of these occurs, the two leaves run concurrently.

If paid leave is not substituted for unpaid FMLA leave, then the employee remains entitled to all accrued paid leave when they return to work.

Here’s the federal regulation that addresses your question. 29 CFR § 825.207 provides in part:

(a) Generally, FMLA leave is unpaid leave. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term "substitute" means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. See §825.300(c). If an employee does not comply with the additional requirements in an employer's paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.

(b) If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan.

(c) If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the employee's FMLA leave entitlement. For example, paid sick leave used for a medical condition which is not a serious health condition or serious injury or illness does not count against the employee's FMLA leave entitlement.

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Is cash offered to an employee in place of a health care plan considered to be "reportable compensation”?
Reviewed: 11/13

Yes. This conclusion is based on WAC 415-108-455, which provides in part:

Compensation received in any form under the provisions of a "cafeteria plan," "flexible benefits plan," or similar arrangement pursuant to section 125 of the United States Internal Revenue Code is reportable compensation if the employee has an absolute right to receive cash or deferred cash payments in lieu of the fringe benefits offered.

This means that for cash or deferred cash payments in lieu of fringe benefits, there must be federal withholding for income tax, social security, and so on.

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May a city require preemployment drug tests for a lifeguard position?
Reviewed: 11/13

Yes, we think the city can legally require preemployment drug testing for lifeguards. Based on a 2000 state court of appeals decision, Robinson v. City of Seattle, 102 Wn. App. 795 (2000), we have advised that a city may require preemployment drug testing for applicants to positions "whose duties will genuinely implicate public safety." The court in Robinson stated:

Preemployment drug testing of applicants who will carry firearms or whose duties may otherwise jeopardize public safety is justified. What precise positions those may be is not readily apparent, beyond certain obvious police officer and firefighter positions.

102 Wn. App. at 827. It is clear that lifeguards’ duties "genuinely implicate public safety." As to other city staff positions, the testing would have to be justified under this public safety standard.

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A firefighter who is a veteran was called to active duty for a year but only served 10 months. Under RCW 41.04.010(3), is the firefighter eligible for the veterans' scoring criteria status (preference) even if he didn't serve the whole year in active service?
Reviewed: 11/13

Based upon the wording of RCW 41.04.010(3) and its legislative history, the answer appears to be "yes." RCW 41.04.010(3), as amended effective July 26, 2009, provides that five percent be added to the passing grade on competitive examinations by veterans who were called to active military service. According to the final bill report explaining why the words "for one or more years" were deleted after the words "active military service" through the 2009 amendment:

Public employees called to active military service may receive the 5 percent scoring preference on promotional examinations, regardless of how long the employee serves in active service.

(Emphasis added.)

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May a veterans' preference be used more than once if the veteran was laid off from the position he obtained by using the preference?
Reviewed: 11/13

No. The credit can only be used once. RCW 41.04.010 provides that there must be added to the passing grade in a competitive examination:

(1) Ten percent to a veteran who served during a period of war or in an armed conflict as defined in RCW 41.04.005 and does not receive military retirement. The percentage shall be added to the passing mark, grade, or rating of competitive examinations until the veteran's first appointment. The percentage shall not be utilized in promotional examinations . . . .

(Emphasis added.) Once the first appointment has been made, the credit is no longer available. There is no exception for a veteran who used the preference to obtain a position but who was then laid off.

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Does a person who served in the National Guard but not on active duty qualify for the veterans' scoring criteria status?
Reviewed: 11/13

Yes, he would qualify as a veteran for purposes of the veteran's scoring criteria status. It is not necessary that he had been on active duty. He qualifies because he received an honorable discharge and had served "as a member in any branch of the armed forces of the United States, including the national guard and armed forces reserves, and has fulfilled his or her initial military service obligation." RCW 41.04.007(1).

As a result of statutory changes in 2000 and 2002, there is no longer a requirement of "active duty" nor a requirement that the person had served during a "period of war" or in an "armed conflict," though this person did. However, because he served during a period of war or in an armed conflict and, we presume, does not receive military retirement, he qualifies for the 10 percent scoring status under RCW 41.04.010(1), as opposed to the five percent status that is available under RCW 41.04.010(2) to those who did not serve during a period of war or in an armed conflict.

For more information on this new statutory scheme, see Veterans' "Preference" or "Scoring Criteria" Status in Civil Service.
 

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May a veteran's preference points be "saved" if the applicant is the top scorer?
Reviewed: 11/13

No. RCW 41.04.010, which sets out the rules for applying the veterans' preference, provides that the county "shall give" the preference "until the veteran's first appointment." We read this to mean that the county must apply the preference and that the preference, once used, may no longer be used after the applicant's first appointment; thus, the preference cannot be saved.

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Do elected city officials (such as the mayor and councilmembers) count toward the initial fifty employees that are required before a public entity has eligible employees under the federal Family and Medical Leave Act?
Reviewed: 11/13

No. The federal FMLA actually applies to all public employers regardless of number of employees. However, public employees are only eligible for the benefits of the FMLA if there are fifty or more employees who are employed at a work site within 75 surface miles of the employer. (This is very confusing in itself but is the way the law is written). In any case, according to FLSA, persons who hold a public elective office in a city, such as the mayor and councilmembers, are not employees for purposes of the FMLA.

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Must a city or county grant family leave under state law to an employee who has an adult child who is incapable of self-care, if the child has a spouse who could care for her? How about for daughters-in-law?
Reviewed: 11/13

The law to which you refer has an expanded definition of the term "child;"  RCW 49.12.265(1)  defines the term "child" as follows:

 

(1) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is: (a) Under eighteen years of age; or (b) eighteen years of age or older and incapable of self-care because of a mental or physical disability.

As you can see from the definition, the term includes adult children who are incapable of caring for themselves due to a physical disability. The statute places no other limitation on the term or its coverage. Accordingly, so long as the child cannot care for him/herself due to a physical disability, the leave is available to the parent, regardless whether the adult child has a spouse or someone else who could provide care. See RCW 49.12.270.

Could a city or county be required to grant leave to an employee so that the employee could care for an adult daughter-in-law? No. As you can see from the above definition of "child," the relationship between the employee and the child must be either biological or the child must be adopted, a foster child, a stepchild, or a legal ward. This would not include a daughter-in-law.

Here is a question and answer from the Department of Labor and Industries concerning the family care law that further supports these conclusions:

 

7. Under what circumstances is a parent of an adult son or daughter covered? The scope of the rules includes children regardless of age, school attendance or marital status. If an adult son or daughter (i.e., 18 years of age or older) is “incapable of self-care because of a mental or physical disability … that limits one or more activities of daily living,” then s/he is covered under this rule. The disability does not need to be a chronic condition to be covered. Traumatic injuries, surgery, illness, and some conditions relating to pregnancy may also cause a temporary disability for an individual. A disabling condition is one that prevents an individual from engaging in activities such as bathing, dressing, eating, cooking, shopping, or using public transportation without active assistance. Some individuals with a mental disability would be even more limited for other basic needs described in the rules.

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Request for sample city employee job descriptions.
Reviewed: 11/13

You can find many sample job descriptions on MRSC's Web site. You can search for a particular job description by position title or you can browse through job descriptions.

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May a city require all new employees to undergo a physical examination?
Reviewed: 11/13

Yes, as long as it is required for all new employees. A preemployment physical may only be required if it is given to learn about the applicant's ability to perform job-related functions. 42 USC 12112(a) and 12114(d)(1). A medical examination may be required after a conditional offer of employment has been extended to an applicant, if all entering employees are required to undergo the same examination and the information obtained is treated as confidential. 42 USC 12112(d)(3). An applicant may be rejected if the examination establishes that there would be a "direct threat" to the health or safety of others. 42 USC 12111(3); 29 CFR 1630.2(r). The United States Supreme Court has held that an applicant can be rejected if the examination establishes a high probability of substantial harm to the applicant himself or herself, if he or she were to perform particular functions of the job. Chevron USA, Inc. v. Echazabal (Docket No. 00-1406), 122 S. Ct. 2045, 536 U.S. 73 (2002).

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A new hire has been called up into military service. He has not completed training or civil service probation requirements. Is he covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
Reviewed: 11/13

Yes, he would be covered. USERRA, at 38 USC 4312(d)(1)(c), provides for an exclusion when:

  • [T]he employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

Only very temporary positions, such as seasonal workers, are excluded (and, according to one commentator, this exclusion is very narrowly construed). A newly-hired employee is covered.

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Must city or county allow an employee to take time off for volunteered military training?
Reviewed: 11/13

Yes.

Under Washington law, an employee is entitled to a military leave of absence for a period not to exceed 21 days each calendar year. RCW 38.40.060. During this leave, the employee continues to be paid his or her regular salary.

Under a 1999 attorney general opinion, a day is calculated according to the number of days the person would have worked, but for the military training. Thus, if the employee were scheduled to work 2 hours on a day, but for the military commitment, that would be a military leave day. Similarly, if the employee was scheduled to work 12 hours on a single day, that too would constitute one military leave day. See AGO 1999 N0. 2.

It does not matter whether the person was ordered to take the training or whether he or she volunteered. See 38 USC sec. 4301.

There is no requirement that a Washington employer grant more than 21 days paid leave; however, the employer must agree to, under most circumstances, reemploy the employee, under terms of the federal Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301 et seq. (USERRA). The reemployment rights end after five years cumulative total of military service. The rights are available whether the person is in combat, active duty for training, or inactive duty.

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If a firefighter is called into military service and returns in one year, does he go back to the job he left or to the job he likely would have been at?
Reviewed: 11/13

The firefighter would likely be returned to the job he would have been at, had he not been called into service. See 38 USC 4313(2) of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Even though some qualification may be (or would have been) necessary, the officer likely would have advanced into the next higher position, had he remained employed to the city.

Under USERRA (cited above) it appears that the person goes into the higher position, so long as he is qualified for the position or could become qualified for the position after reasonable efforts by the city. If after reasonable efforts the person is not qualified, he would be returned to the position he held when he left for military service.

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Do employees continue to accrue vacation leave while on military service?
Reviewed: 11/13

Not usually. An employee when called into active service is treated as if he or she was on either a furlough or leave of absence. If the city or county allows the employee to continue his or her accruals during a furlough/leave of absence, then he or she would continue to receive accruals during the military leave. However, without such a policy, the employee would not accrue the leave.

If the length of a person's vacation is determined by length of service, then the time spent on active duty would be added to the length of the employee's employment for determining the amount of vacation he or she is entitled to. For example, if an employee adds a day of vacation for each year of employment, he or she would add a day of vacation if on military leave for a year.

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Does USERRA apply to probationary employees?
Reviewed: 11/13

The answer to that question is clear; yes, USSERA applies to a probationary employee, based on its definition of "employee" as "any person employed by an employer." 38 U.S.C. §4303(3). A probationary employee is employed by an employer and therefore is an "employee" covered by USERRA. (Note that this will typically become an issue only in the context of civil service.)

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If a probationary employee enters and then returns from military service within five years, does that probationary employee, upon reemployment pursuant to USERRA, return to probationary status?
Reviewed: 11/13

Although USERRA does not provide any specific guidance on this question, the consensus appears to be that the probationary employee returns to probationary status upon reemployment following military service. We discussed this issue with a mediator from the National Committee for Employer Support of Guard and Reserve (NCESGR), a Department of Defense agency that provides information on USERRA to employers and employees and that seeks to resolve disputes on an informal basis. (1-800-336-4590)

In general, employees returning to employment from military service are entitled to the seniority and rights and benefits that they would have with reasonable certainty attained had they remained continuously employed. 38 U.S.C. §4316(a). However, a returning probationary employee is not entitled to automatic completion of his/her probationary period because completion of probation is not based on seniority but rather is subject to a "significant contingency" - satisfactory performance during the probationary period. (Although USERRA does not employ the term "significant contingency," it is applied in this context by numerous resources that were consulted on this question.)

Once the returning probationary employee satisfactorily completes the probationary period, then he or she would receive those seniority-based rights and benefits that were not immediately available, because of probationary status, upon return from military service. In other words, those seniority-based rights and benefits are deferred until completion of the probationary period.

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How does the USERRA protection from termination without cause for up to one year apply to a returning probationary employee?
Reviewed: 11/13

Under USERRA, an employee who has returned from military service of more than 30 days but less than 181 days cannot be discharged except for cause for six months after reemployment. If the employee served more than 180 days, he r she cannot be discharged except for cause for one year after reemployment. 38 U.S.C. §4316(c).

 

This provision presents a practical problem with respect to a returning probationary employee if, upon return, the probationary employee does not successfully complete probation. Under civil service law, a city or county may terminate a probationary employee during the probationary period "if the appointing power deems him unfit or unsatisfactory for service in the [fire or police department or office of county sheriff]." RCW 42.08.100; 41.12.100; 41.14.130. So, the probationary employee is, basically, an at-will employee who may be terminated for less than just cause. The statutory civil service probationary period is, for city police and fire departments, from three to six months (RCW 42.08.100; 41.12.100) and, for the county sheriff's office, one year (RCW 41.14.130). (Some cities provide for a longer probationary period than specifically authorized by state law.) But, under USERRA, a city or county may not terminate even a probationary employee for six months or a year after reemployment, depending upon the length of service (as long as the service was for more than 30 days), except for just cause.

So what does a city or county do with a returning probationary employee who cannot be terminated except for cause for six months or a year after reemployment if the city or county determines, during the remainder of the probationary period after reemployment, that the employee is "unfit or unsatisfactory for service"? If a city or county wants to terminate a returning probationary employee for less than cause before the end of the probationary period, it may not do so until the applicable six-month or one-year period under USERRA ends. But the city or county would in this situation (in most cases) be faced with the problem of either extending the probationary period beyond that authorized in the local civil service rules or allowing the probationary employee to become a "regular" employee who cannot be terminated, under civil service law, except for just cause.

So, it may behoove a city or county to allow in its civil service rules for the probationary period to be extended under this circumstance. Then, upon expiration of the six-month or one-year period after reemployment, as the case may be, the employee would still be on probation and could then be terminated for less than cause. Assuming that this is the way USERRA would be applied in this circumstance, the probationary employee who would be terminated would receive the USERRA benefit of not being fired except for cause for a six-month or one-year period, but he or she would not receive the seniority-based benefits under USEERA.

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 Are monetary awards, given under an employee recognition program, subject to payroll taxes?
Reviewed: 11/13

Yes, any cash award is taxable to the employee as a wage and is subject to payroll taxes and withholding. Cash equivalents, such as savings bonds and gift certificates are also taxable. See discussion set out beginning at page 65 in the Internal Revenue Service publication, Taxable Fringe Benefit Guide, January 2013. The fair market value of non-cash awards and prizes may also be taxable.

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Must employee medical records be kept separate from the regular personnel records
Reviewed: 11/13

There are several federal regulations that require or strongly urge that all medical records be kept separate from regular personnel files. The regulations are adopted under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and, more recently, the Health Insurance Portability and Accountability Act (HIPAA). . Which regulations apply to the city depends upon whether the city has fewer than 15 employees. We recommend that all cities keep medical records in a separate cabinet, with limited access. It is important that employment decisions not be based upon medical information, except as specifically allowed by federal law. The city attorney should be consulted when there are issues of this type.

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Must a city or county obtain signed permission of a job applicant before contacting job references?
Reviewed: 11/13

The law does not require a signed release/permission before contacting references/former employers, but it is generally thought that a signed release/permission may increase the likelihood of receiving more helpful, substantive information from a former employer. A law enacted in 2005 may also help; RCW 4.24.730 makes employers immune from civil liability if they give honest and accurate job references on current or former employees.

So, it's probably a good idea to have a signed authorization and an indication on the application form that references may or will be contacted. But, it's not required.

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Must a person who is being offered a temporary position as police chief take a polygraph examination?
Reviewed: 11/13

Yes. RCW 43.101.095 requires that any person who has been given a conditional offer of employment as a fully commissioned police officer must successfully pass a psychological examination and a polygraph. Standards for the tests are set out in the statute. This requirement applies even to temporary appointments.

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May the city or county pay a "signing bonus" to a new employee?
Reviewed: 11/13

In our opinion, a city or county could do this if the signing bonus was contained in a city or county policy and there was money budgeted for it. This would not be a gift of public funds, because there would be consideration received by the city or county, in the form of an agreement by a new employee to work for the city. Offering such bonuses would be a policy decision for the city or county.

 

The answer would be the same for payment of a finder's fee to an employee who located another person who came to work for the city or county and stayed a minimum period of time, such as six months, assuming that such payments were authorized in advance by a city or county policy adopted for this purpose.

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May a police department or sheriff's office consider a job applicant's felony conviction record when making hiring decisions?
Reviewed: 11/13

Yes, although local law enforcement agencies are not required to do so.

 

RCW 9.96A.020(2) provides that a person may be denied employment by a city or county by reason of prior conviction of a felony but only if the felony relates to the position of employment sought, and the time elapsed since the conviction is less than ten years. However, RCW 9.96A.030 specifically provides that chapter 9.96A RCW is not applicable to law enforcement agencies. RCW 9.96A.030 further provides that "nothing herein shall be construed to preclude a law enforcement agency in its discretion from adopting the policy set forth in this chapter."

This exemption for law enforcement agencies is reflected in WAC 162-12-140, adopted by the state Human Rights Commission with respect to preemployment inquiries.

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Under what legal basis can law enforcement agencies require physical agility tests for police officers?
Reviewed: 11/13

The requirement that police officers demonstrate certain physical agility is considered a "bona fide occupational qualification" and, therefore, not discriminatory. This means that agility tests may be permitted because agility requirements are essential to, or will contribute to, the accomplishment of the purposes for which that person is hired. WAC 162-16-240.

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May a code city pay for dinner of person it is recruiting?
Reviewed: 11/13

State law recognizes that a code city can pay expenses incident to the recruitment of employees (RCW 35A.33.080). Authority to pay for travel expenses, including transportation, subsistence, and lodging has been given to special districts. Since payment for recruiting expenses is not prohibited by state law and since code cities have been granted broad powers, a code city could adopt a policy to pay meal expenses for candidates. This same conclusion would be true for first class cities.

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May city make criminal background check of reserve fire department applicants?
Reviewed: 11/13

Yes, in our opinion, it may. Generally employers are limited in the type of pre-employment inquiries that can be made as to an applicant's arrest and conviction record. Law enforcement agencies are exempt from such restrictions. A firefighter is a "police officer" pursuant to RCW 19.27.031(3) and may arrest pursuant to RCW 10.31.100; see also RCW 46.61.015. In our opinion, a firefighter would be a "law enforcement officer" for purposes of the state discrimination laws, and thus inquiries as to his or her arrests and convictions would be permissible.

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May city hire applicant who applied for position after "cut-off" date?
Reviewed: 11/13

Yes. There is no state law that specifically tells cities how to conduct their employment selection process. There is no requirement that the city advertise, nor that applications be accepted only during a limited, specified time period. Unless the city council has adopted hiring procedures providing otherwise, nothing would prohibit the receipt and review of a "late" application; the only violation would be of an informal, self-imposed rule. Presumably the city could reject all of the candidates from the original pool, and then just hire whomever it wished. The only thing the city cannot do is to discriminate based on certain factors, such as race, marital status, and age. If all of the candidates who submitted applications after the cut-off date are screened and treated equally, there would not appear to be any discrimination.

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May a city or county hire a former elected official of that same city or county immediately following his or her public service, or must they, like the state, wait a year?
Reviewed: 11/13

There is no general prohibition against city or county employment immediately following public service that applies to city or county elected officials. RCW 42.52.080, part of the state ethics code, imposes restrictions on certain state officers and employees regarding employment after leaving public service. However, that statute does not apply to officers or employees of political subdivisions including cities and counties.

One specific, but limited prohibition applies only to elected officials in a council-manager code city. RCW 35A.13.050 provides that no person elected to the city council may be appointed as city manager until one year has elapsed following the expiration of their term in office.

Otherwise, cities and counties may hire former elected officials once their terms of office have expired.

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Do the safety standards for firefighters contained in chapter 296-305 of the Washington Administrative Code apply to volunteer firefighters?
Reviewed: 11/13

Yes. These standards apply to volunteer firefighters as well as regular full-time employees of the fire department. They were adopted pursuant to the Washington Industrial Safety and Health Act (WISHA), contained in chapter 49.17 RCW. The Department of Labor and Industries adopted these regulations to establish safety and health standards for conditions of employment in all work places. The regulations for firefighters apply to all employers and their employees. It is clear that the term "employer" as utilized in the Act includes cities and towns. The only issue is whether the term "employee" would also apply to a volunteer firefighter. Although there is no case law on this subject, a letter opinion from the Office of the Attorney General, AGLO 1975 No. 76, specifically addressed this question and concluded that volunteer firefighters are employees for purposes of the Washington Industrial Safety and Health Act.

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Do the OSHA safety regulations apply to a small city?
Reviewed: 11/13

The federal Occupational Safety and Health Act (OSHA) regulations are made applicable to cities via the state regulations in the Washington Industrial Safety and Health Act (WISHA). The statutory provisions governing WISHA are in Ch. 49.17 RCW.

The definition of employer for purposes of WISHA is in RCW 49.17.020(4). This provides that the term "employer" includes cities and all political subdivisions of the state which employ one or more employees. Therefore, all cities and towns are covered.

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Is a newly hired police chief required to take a psychological exam and polygraph test?
Reviewed: 11/13

Yes. After amendments to RCW 43.101.095 went into effect in July, 2005, all new officers (it does not exempt a police chief) employed by a city, town or county or the Washington State Patrol must take a psychological exam and polygraph test. The new requirements also apply to commissioned officers transferring from another jurisdiction and to applicants for a position as a fully commissioned reserve officer. The legislation provides that jurisdictions can charge the applicants up to $400 for their share of the testing costs.

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May a local government employer count FMLA qualifying leave as FMLA leave when the employee fails to request FMLA leave?
Reviewed: 11/13

According to an FMLA Fact Sheet prepared by the U.S. Department of Labor:

Q: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee's return to work.

29 CFR 825.301(d) provides:

(d) Retroactive designation. If an employer does not designate leave as required by § 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by § 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.

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Is a learning disability a covered disability under the Americans with Disability Act (ADA)?
Reviewed: 11/13

Yes. The regulations adopted under the ADA define "disability" to include "A physical or mental impairment that substantially limits one or more of the major life activities." 29 CFR 1630.2; 28 CFR 35.104. A "physical or mental impairment" is defined in these regulations to include "Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

However, this does not mean that a person who can't read is considered disabled under the ADA unless the inability to read is a result of a learning disability such as dyslexia. If a person is illiterate because of a deficient education, he or she is not considered disabled under the ADA.

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Must employee medical records be kept separate from the regular personnel records?
Reviewed: 11/13

There are several federal regulations that require or strongly urge that all medical records be kept separate from regular personnel files. The regulations are adopted under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and, more recently, the Health Insurance Portability and Accountability Act (HIPAA). We recommend that all cities keep medical records in a separate cabinet, with limited access (preferably locked). It is important that employment decisions not be based upon medical information, except as specifically allowed by federal law. The city attorney should be consulted when there are issues of this type.

For information on public records disclosure, see:

 

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How long must a local government employer make light duty available to a pregnant employee?
Reviewed: 11/13

In general, an employer is not required to provide a light duty assignment for pregnant employees. However, because of the federal Pregnancy Discrimination Act (PDA) and our state anti-discrimination law (see WAC 162-30-020), an employer may not treat pregnant employees any differently than it treats other employees with a non-work related injury. (Note that pregnancy is not considered a disability under the ADA.)

 

Similarly, the state Human Rights Commission regulations provide that it is an unfair labor practice "for an employer, because of pregnancy or childbirth, to . . . impose different terms and conditions of employment on a woman." WAC 162-30-020(3)(a)(ii).

So, if an employer provides light duty assignments for employees with a non-work related injury or temporary health problem, it must treat pregnant employees similarly. Federal courts have held that the PDA is not violated when it offers light duty solely to employees who are injured on the job and not to employees, including pregnant ones, who suffer from a non-occupational "injury." There is no legal requirement that an employer provide more light duty than is available to other employees with a non-work related injury or temporary health problem.

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Must employees be allowed to use sick leave to care for the parent in-laws of spouses?
Reviewed: 11/13

There was legislation enacted in 2002 on this subject. See Chapter 243, Laws of 2002 (RCW 49.12.265-.270). If an employee is granted sick leave pursuant to a collective bargaining agreement or personnel policy, they the employer must allow the employee to use sick leave to care for a spouse, child, parent, parent-in-law, or grandparent who has a health condition.  Since January 1, 2003, employees are allowed to use sick leave to care for a parent-in-law.

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Request for information on ESSB 5264 (Chapter 155, Laws of 2002) prohibiting the misclassification of public employees.
Reviewed: 11/13

SSB 5264 (Chapter 155, Laws of 2002) added several new sections to Ch. 49.44 RCW  (RCW  49.44.160 and 49.44.170) and became effective on June 13, 2002. The intent of the legislation is to prohibit public employers from misclassifying employees, or taking other action to avoid providing or continuing to provide employment-based benefits to which employees are entitled under state law or employer policies or collective bargaining agreements. The act declares it an "unfair practice" for a public employer to

"misclassify" any employee to avoid providing or continuing to provide employment-based benefits. "Misclassifying" means to incorrectly classify or label a long-term public employee as "temporary, "leased," "contract," "seasonal," "intermittent," or "part-time," or to use a similar label that does not objectively describe the employee's actual work circumstances.

Public employers may determine eligibility rules for their own benefit plans and may exclude categories of workers such as "temporary," "seasonal," or "part-time" employees, so long as the definitions and eligibility rules are objective and applied on a consistent basis.

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When do the federal Family Medical Leave Act (FMLA) provisions apply to a city or county?
Reviewed: 11/13

The answer to this is somewhat confusing. On the one hand, all public agencies are covered by the FMLA, regardless of the number of employees. However, for an employee of a public agency to have FMLA rights, the employer must employ at least 50 employees at the worksite or within 75 miles of it.  See 29 CFR 825.104.

So, the bottom line is that if a city does not employ at least 50 employees, then the employees are not entitled to FMLA rights.
Note that a federal appeals court has ruled that employers do not have the luxury of asserting this defense at any time in the course of litigation. Rather, they must make the claim either before the trial begins or during the trial. If they do not, they will be deemed to waive the defense. See Minard v. ITC Deltacom Communications Inc., No. 04-30230 (5th Cir., 4/18/2006).

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Must a city or county pay for nursing home care for LEOFF 1 retirees?
Reviewed: 11/13

While it is not a "given" that nursing home care must be paid for retirees, there is a very good chance that it must. RCW 41.26.030(19)(b)(iii)(I) defines the term "medical care services" to include "nursing home confinement". The statute does not limit the type of nursing home care a retiree can obtain or place a ceiling on related expenditures. A city's liability for these costs depends on whether or not the local disability board approves the expenditure. See RCW 41.26.150.This board has great authority in approving or disapproving a medical expense claim for nursing home care. If a city or county is concerned that the expense is not warranted or is beyond what is warranted, it has an opportunity to make its case before the local disability board. If the board approves the expense, the jurisdiction is most likely obligated to pay.

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Do part-time employees accrue sick leave and vacation benefits?
Reviewed: 11/13

This depends on city, county or special district policy, since state law does not mandate a specified level of benefits for part-time employees (or, for that matter, full-time employees). Some local governments do not allow part-time employees to accrue vacation and sick leave benefits. Othes allow such accrual on a prorated basis.

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Must local governments provide benefits to domestic partners?
Reviewed: 11/13

No, but see the next paragraph.. For the most part, local governments are not required to provide benefits, such as health, dental and vision insurance, to their employees. But, if such benefits are supplied, there is no requirement that they include coverage for an employee's spouse or dependent children. Whether and to what extent benefits will be provided is an issue of policy for the governing body to determine. A fairly typical situation, but certainly not the only one, is for the city, town, county or special district to pay for all or part of the cost of health-related insurance costs for its employees, and oftentimes for the employees' spouses and children.

In 2009, a bill providing for “everything but marriage” (chapter 521, Laws of 2009, SB 5688) was passed and, after a referendum, approved by the voters. This legislation provided for, among other things, enhanced rights for same-sex couples, who registered as domestic partners, including the right to make hospital visitations, the ability to authorize autopsies and organ donations, and establishing inheritance rights for same sex couples when there is no will. It required that registered domestic partners be treated the same as married spouses under state law. As result of the 2009 legislation, employers who extend health-related benefits to married couples must also provide such benefits to registered domestic partners. Before the 2009 legislation, state supreme court upheld Vancouver's extension of benefits to domestic partners in Heinsma v. City of Vancouver, 144 Wn. 2d 556 (2001).

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RCW 41.04.340 allows the state to cash out an employee's sick leave (upon separation) at a 4:1 ratio. Is there a similar provision for city or county employees?
Reviewed: 11/13

There is no similar provision for city or county employees. Sick leave benefits are completely discretionary for cities and counties - whether or not to even provide sick leave benefits and under what terms sick leave benefits will be provided, if they are. However, most, if not all, provide some form of sick leave benefits.

 

As to cash-out provisions for sick leave, some jurisdictions do provide some form of cash-out at retirement and/or termination. These cash-out provisions vary considerably. For example, some provide cash-out on a 2:1 ratio, some a 3:1 ratio, and some a 4:1 ratio. Some have a sliding scale (0-100 percent) based on number of years of employment. It's completely up to the city or county how it allows cash-out of sick leave, if it allows it at all.

Here are a few sample sick leave cash-out policies:

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Can the civil service commission adopt a "rule of five?"
Reviewed: 11/13

Apparently it may do so. The state court of appeals has upheld a Seattle civil service rule allowing the appointing authority (the chief of police) to fill a position by selecting a candidate from the top five applicants by the civil service commission. The court found that this "rule of five" had historical roots, was similar to the "rule of three" previously upheld by the court, and "substantially accomplished" the purposes of the state civil service laws.

Another aspect of the Seattle rules, however, one that allowed the chief to select from either the top five candidates or the top 25 percent of the applicants, whichever number was greater, was held to give the chief too much discretion and thus was inconsistent with state law. See Ramm v. Seattle, 113 Wn. App. 431 (2002).

The ability of cities to adopt a "Rule of Five" is based upon the statutory language that allows rules to be adopted that "substantially accomplish" the purpose of the state civil service laws. The is no similar language in the statutes relating to civil service for county sheriffs. Accordingly, counties are required to use the "Rule of Three" provided for by RCW 41.14.130.

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May the civil service commission investigate a complaint of misconduct against the fire chief that has been made by a citizen?
Reviewed: 11/13

In our opinion, such an investigation would not be proper.

 

The primary purpose of the civil service commission is to assure that employment decisions are made based upon merit, rather than on politics or cronyism, such that the most qualified candidates receive employment or promotion. The commission also conducts hearings on discipline to make sure that demotions, suspensions, or terminations are based upon certain conditions, such as dishonesty or incompetence, rather than on favoritism or political reward or penalty. It is for these general purposes that the commission has the power and authority to investigate, as opposed to issues relating to the day-to-day performance of duty by covered officers. Discipline and termination authority remains with the chief executive officer of the city, not with the commission. The commission becomes activated, at least as to discipline, only if the mayor or city manager takes action against a covered employee and that employee appeals that action to the commission.

This exact issue was considered in a formal opinion of the Office of the Attorney General, AGO 1986 No. 9:

We conclude that the police civil service commission’s investigatory power does not authorize it to conduct an initial investigation respecting the conduct of classified personnel. The commission’s right to investigate does not arise until a written demand for an investigation has been filed, following removal, suspension, demotion, or discharge, as provided in RCW 41.12.090.

This conclusion would have equal application to fire department civil service, as the statutory language involved is identical.

In a booklet prepared by Susan Rae Sampson, Basic Training for Civil Service Commissioners in Washington (1991), it is stated at page 35:

Commissioners are likely to hear complaints of police misconduct from citizens who wish the Commission to convene an investigation. But the Commission's authority is limited to inquiry into merit hiring, merit promotion and sufficient cause for discharge. The Commission is not the administrative agency that oversees internal administration of the police department. Complaints of police misconduct other than allegations of tampering with the Civil Service system should be referred to the chief of police, the mayor, the county commissioners, the county executive or the voters.

Perhaps the most compelling reason for not having the commission conduct investigations of complaints is that, if it were to do so and evidence of misconduct warranting discipline or termination were found, the commission would be ineligible to consider the matter on appeal from the affected officer. In this regard, see State ex rel. Beam v. Fulwiler, 76 Wn.2d 313; 456 P.2d 322 (1969). There the court concluded that the commission could not investigate, accuse, prosecute, and then judge the controversy involved.

Thus, in this instance, it would not be proper for the commission to investigate the citizen’s complaint. The complaint should go to the mayor instead.

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Does the civil service commission have jurisdiction to review a reduction in force decision by the city council?
Reviewed: 11/13

No. The decision of the city council to reduce the size of the police force because of budget issues is not a decision that can be reviewed by the civil service commission. This type of action does not constitute a demotion or termination of service as the term is used in the civil service statutes. It is a policy decision for the city council and such decisions do not have to be approved by the civil service commission.

In Wettrick v. Seattle, 115 Wash.. 548 (1921), the court noted the general rule:

  • It is well settled that it is within the powers of a city council to abolish a position in the classified civil service and thus separate an incumbent from the service and discontinue the salary thereof.

This does imply that the reduction in force is being conducted in good faith. If just one position is involved and the position is abolished and then immediately reestablished, then it may be a termination in disguise and that would be improper.

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If a new collective bargaining agreement is inconsistent with local civil service rules, which prevails?
Reviewed: 11/13

The collective bargaining agreement would prevail. The state court of appeals held in Spokane v. Civil Service Commission, 98 Wn. App.574 (1999), that if a conflict exists between the Public Employees' Collective Bargaining Act, chapter 41.56 RCW, and the rules for police civil service commissions under chapter 41.12 RCW, the former statutory scheme and the collective bargaining agreement prevail.

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At what point must a civil service system for police be formed in a small city or town?
Reviewed: 11/13

At the point when the city or town has three full-time paid police officers, including the chief.  See RCW 41.12.010.

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At what point must a civil service system for fire be formed in a small city or town?
Reviewed: 11/13

At the point when a city or town has any full-time paid fire fighters.

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Does state law mandate what is required if a police or fire civil service position is eliminated?
Reviewed: 11/13

No. This is a situation in which a position is being eliminated. It is not a demotion, disciplinary action, or a layoff. State civil service law does not mandate how this must be handled.

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Should a part-time position in the police department be included in civil service?
Reviewed: 11/13

The police civil service system applies to full-time employees of the police department. See RCW 41.12.050. It applies to all full-time employees, regardless of whether they are uniformed officers or not.  However, while part-time employees are not specifically covered by civil service, civil service rules likely could be written to provide for their inclusion, since inclusion of part-time employees would still "substantially accomplish the purpose" of the state law.

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May a city abolish its police civil service system if the police force is reduced to only two officers?
Reviewed: 11/13

Yes. This may be done if the reduction is a permanent one. There is an issue concerning whether the two officers are grandfathered into the civil service system as long as they work for the city, but it appears that there is no vested right to continued civil service coverage.

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Must all employees of the police department be members of the civil service system?
Reviewed: 11/13

Yes. If a city or town police department is subject to civil service, then all full-time employees of the police department, including clerical and support staff, must be in the civil service system. This was the conclusion in the case  Teamsters Food Processing Employees, Public Employees, Warehousemen and Helpers, Local Union No. 760 v. Moses Lake, 70 Wn. App. 404 (1993).

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May a city exclude its police chief from civil service?
Reviewed: 11/13

The authority to remove the police chief from civil service has been available to cities since July 1987, and applies to those individuals appointed as police chief after July 1, 1987 (see RCW 41.12.050).

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Is a person eligible for veterans' preference in civil service if they have only been in the military a few months before being honorably discharged for medical reasons?
Reviewed: 11/13

Yes. There is no minimum time that has to be served before a person is eligible to be considered a veteran for preference purposes. RCW 41.04.005 defines "veteran" to include every person "who at the time he or she seeks the benefits" of veterans' preference status "has received an honorable discharge or received a discharge for physical reasons with an honorable record. . . ." For more on this topic, see the Veterans' Scoring Criteria Status information in our Civil Service topic page.

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Can cities extend the probationary period for new police hires from six to twelve months?
Reviewed: 11/13

This is in response to your inquiry regarding whether cities can extend the probationary period for new hires from six to twelve months. You've indicated that the six-month probationary period does not provide enough time to evaluate candidates since the police academy is nearly five months long.

Although the state statute relating to civil service for city police officers specifies a six-month probationary period (see RCW 41.12.100), there are cities in the state that have a one-year probationary period for police officers. These cities have argued that the one-year probationary period substantially accomplishes the purpose of the state civil service laws.

The state court of appeals in Arbogast v. Westport, 18 Wn. App. 4, 567 P.2d 244 (1977), upheld the city of Westport's one-year probationary period, basing its decision in part on the fact that Westport has a seasonally-fluctuating population, which makes a six-month probationary period less effective. Although it is not clear whether this case justifies a one-year probationary period in all cities and towns, a one-year period may be defensible in other cities and towns for other reasons. In view of the increasing requirements for police training, a good argument can be made that an extension of the probationary period from six to twelve months may be necessary to enable additional time to evaluate candidates once they have completed their academy training.

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May the fire department civil service commission exempt a number of fire fighter positions from civil service coverage?
Reviewed: 11/13

The only position that may be exempted from civil service coverage in a city fire department is the chief. There is no provision for exempting other full-time members of the fire department. See RCW 41.08.050, which provides that all full-time members of the fire department are to be included in the civil service system, except for the chief.

This is different from the statutory provisions on police civil service. There is specific authorization in RCW 41.12.050 to designate some positions in the police civil service system as unclassified and exempt from civil service coverage.

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May city disability board designate a specific provider of medications for its retirees?
Reviewed: 11/13

Yes. AGO 1980 No. 18, in answer to "Question 3," after having explored the legislative history of RCW 41.26.150(1), concluded that not only may a board decide "what" services are "necessary medical expenses," it may designate where those services can come from. The language of the statute relied upon by the 1980 opinion has not changed, and there has not been any court decision or Attorney General Opinion since 1980 that would require a different answer.

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When may a city limit employment of spouses of current employees?
Reviewed: 11/13

By state statute it is considered to be an unfair employment practice to discriminate because of marital status. RCW 49.60.180. For example, discrimination could be found if an employer, which includes a city or county, refused to hire someone simply because his or her spouse was already employed by the same employer. However, it may not be discriminatory to refuse to hire a current employee's spouse if the refusal is based on "business necessity." See WAC 162-16-250:

"Business necessity" for purposes of this section includes those circumstances where an employer's actions are based upon a compelling and essential need to avoid business-related conflicts of interest, or to avoid the reality or appearance of improper influence or favor.

This WAC cites several examples of "business necessity" situations where it is not an unfair practice for an employer to impose rules limiting the employment of spouses:


    (i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;
    (ii) Where one spouse would be responsible for auditing the work of the other;
    (iii) Where other circumstances exist which would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer's interest and their own;
    (iv) Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies, or others with whom the employer deals.

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What is the legal basis for sexual harassment claims?
Reviewed: 11/13

Washington State statutes against sexual discrimination in employment are contained in Ch. 49.60 RCW. This chapter establishes the Human Rights Commission and defines the state "civil rights" which are protected. The crucial statute defining conduct which constitutes unfair practices for public or private employers is RCW 49.60.180. The courts have interpreted this statute as creating a legal right for an employee to sue an employer for hostile work environment sexual harassment; quid pro quo sexual harassment, and disparate treatment based upon gender. Schonauer v. DCR Entertainment, 79 Wn.App. 808, pp. 820-21 (1995).

Sexual harassment is also a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

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May fire department limit age of volunteer fire fighters to those who are under 40?
Reviewed: 11/13

Such an age restriction may violate state and/or federal laws against age discrimination. First, the federal Age Discrimination and Employment Act (ADEA) prohibits discrimination of individuals over the age of forty. Second, RCW 49.44.090(1) makes it an unfair practice to refuse to hire or to terminate any individual between the ages of forty and seventy based solely on age. At first glance, these two provisions would appear to prohibit setting any maximum age limits.

State law says, however, that "employers may establish reasonable minimum and/or maximum age limits with respect to candidates for positions if the positions are of such a nature as to require extraordinary physical effort, endurance, condition or training, subject to the approval of the executive secretary of the Washington state human rights commission or the director of labor and industries." (RCW 49.44.090(1)). See also WAC 162-16-240(2)(a). This requirement is termed a "bona fide occupational qualification." A similar exemption is contained in federal law.

The burden is on the city as employer to prove that it is a bona fide occupational qualification for a fire fighter to be under the age of forty. This may be very difficult to establish, although some maximum age may be defensible. It would be preferable to require a physical examination as part of the hiring procedure, which could include certain job-related tests of physical agility and strength.

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Do state requirements concerning minor work permits apply to local governments?
Reviewed: 11/13

After May 20, 2003, due to a statutory change to RCW 49.12.005(3), local governments are considered "employers" for purposes of the statute requiring work permits (RCW 48.12.123). Therefore, they should now be subject to the regulations adopted by the Department of Labor & Industries (L&I) imposing restrictions on the employment of minors (chapter 296-125 WAC).  

There are special considerations that apply if the student is under 18, which means he/she is considered a "minor." RCW 49.12.121; WAC 296-125-015(6). The basic considerations, focusing on those applicable to 17-year old minors, are as follows:

· The city must obtain a minor work permit before employing a minor. RCW 49.12.121-.123; WAC 296-125-0200-.024.
· The city must obtain a parent/school authorization form for the minor to be employed. WAC 296-125-0260-.027.
· L&I has enacted regulations relating to meal and rest breaks for 16-17 year olds. WAC 296-125-0287.
· L&I has also enacted rules relating to hours of employment, with different standards applicable during the school year and while on school vacations. WAC 296-125-027.
· The minimum wage for 16-17 year olds is the same as for adult workers (those 18 years of age and older). WAC 296-125-043.

Basically, the state rules, promulgated by L&I, relating to the employment of minors are contained in chapter 296-125 WAC.

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Is homework that accompanies a required training course for city or county employees compensable time?
Reviewed: 11/13

Yes. We reviewed this in the FLSA Handbook for States, Local Governments and Schools, by Thompson Publishing Group. There is a discussion of this issue in Section 461 on "Time Spent Studying or Doing Homework." As a general proposition, time spent doing homework for required training courses is compensable time.

There is one exception to this rule which is that, if the study activity is of a general nature and of benefit to the worker as well as the employer, it may not be compensable working time.

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How many hours must an exempt employee work on a particular day in order to be paid for that day?
Reviewed: 11/13

According to the Federal Fair Labor Standards Act (FLSA) regulations, 29 C.F.R. 541.602:

An exempt employee must receive his or her full salary for any week in which he or she performs work, without regard to the number of days or hours worked, unless one of the following exceptions is met:
  1. The employee is absent from work for one or more full days for personal reasons, other than sickness or disability;
  2. The employee is absent for one or more full days because of sickness or disability (including work-related accidents) and the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability;
  3. The city imposes, in good faith, unpaid disciplinary suspensions of one or more full days for infractions of certain workplace conduct rules;
  4. The city imposes penalties in good faith for infractions of safety rules of major significance;
  5. The employee takes leave under the Family and Medical Leave Act (FMLA); or
  6. The employee is absent the entire workweek or performs no work during an entire workweek.

Deductions also are not allowed when the absence is caused by jury duty, attendance as a witness, temporary military leave, or if the absence was occasioned by action of the city (e.g., closing city hall for the day in order to put in new flooring).

On the other hand, if the public employer has adopted a personnel policy providing for sick or vacation leave, the employer may "dock" an employee's salary if leave is taken for personal reasons after his or her leave balances have been exhausted. Salary may also be docked, if an employee takes unpaid leave provide for under the Family and Medical Leave Act (FMLA).

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How are overtime issues addressed where a person works two jobs in the city, one as a jailer and one as a fire captain?
Reviewed: 11/13

When a person works two different jobs for the same employer, there are two alternatives under the FLSA as to how he or she could be paid for any overtime. Under one alternative, this employee would be paid for overtime based on a regular rate of pay that is calculated as the weighted average hourly rate earned during the week. See 29 C.F.R. Sec. 778.115. Under the other alternative, the employee "may agree with his employer in advance of the performance of the work that he will be paid during overtime hours at a rate not less than one and one-half times the hourly nonovertime rate established for the type of work he is performing during such overtime hours." 29 C.F.R. Sec. 778.419.

 

There is a further overtime issue in this circumstance, because the trigger for overtime is different under the FLSA for law enforcement (171 hours per 28-day work period, or prorated for a shorter work period) and for fire protection (212 hours per 28-day work period, or prorated for a shorter work period). So if this person works both in law enforcement and fire protection, the overtime is calculated based on the job "in which the employee spends the majority of work time during the work period." 29 C.F.R. Sec. 553.213.

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Whether the county sheriff can require supervisors to carry pagers when off-duty so that they can be contacted in case of emergency?
Reviewed: 11/13

After a review of the FLSA regulations and the caselaw, it is our opinion that the sheriff can require that supervisors carry a pager when they are off duty so that they can be contacted in case of an emergency.

There are a number of cases that discuss whether "on call" personnel provided with pagers must be compensated during "on call" time when they are waiting to be engaged to work. Generally, the courts have noted that pagers may be used to facilitate quick responses from "on call" employees. The primary case in the 9th Circuit Court of Appeals is Berry v. County of Sonoma, 30 F.3d 1174; 1994 U.S. App. LEXIS 18726 (6/26/94). According to the Berry case, a predominant factor in determining whether on-call waiting time is compensable is "the degree to which the employee is free to engage in personal activities." The proper inquiry is "whether [an employee] is so restricted during on-call hours as to be effectively engaged to wait." The requisite degree to which an employee must be free to engage in personal activities does not require that "the employee . . . have substantially the same flexibility or freedom as he would if not on call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject."

The Fourth Circuit Court of Appeals addressed this precise issue in Whitten v. The City of Easley, 62 Fed. App. 477, 2003 U.S. App. Lexis 6739, 2003 WL 1826672 (4th Cir. 2003) (note that this case cited the Berry case). In that case the court determined that the city firefighters' on-call policy was not so restrictive as to require payment under the FLSA as hours worked. Firefighters carried pagers, were "encouraged" to respond to 80 percent of the call outs, received an average of 6 calls per month and were free during their on-call time to engage in personal pursuits, including dining, shopping, imbibing, and working part-time jobs. In determining whether "on call" time is compensable as overtime, courts consider whether the time is spent predominantly for the employer's benefit or for the employee's benefit. In other words, the question is whether the employee is "engaged to wait" or "waiting to be engaged." To distinguish between these two, courts weigh several factors, including: (1) whether the employee may carry a beeper or leave his home; (2) the frequency of the calls and the nature of the employer's demands; (3) the employee's ability to maintain a flexible "on call" schedule and switch "on call" shifts; and (4) whether the employee actually engages in personal activities during "on call" time. This analysis is important because the FLSA only requires employers to compensate employees who are "engaged to wait."

Merely carrying pagers does not entitle supervisors to compensation. In fact, carrying pagers enables them to freely engage in personal activities and leave their homes. The pagers allow them freedom and flexibility to engage in personal pursuits.

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Can a municipal corrections officer volunteer with a city as a reserve police officer or would this conflict with the Fair Labor Standards Act of employee's volunteering similar work duties?
Reviewed: 11/13

Whether someone is classified as a "volunteer" or an "employee" is governed by the federal Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq. The FLSA, at 29 U.S.C. 203(e)(4)(A)(ii), does not permit an individual to perform hours of volunteer service for a public agency when such hours involve the same type of services which the individual is employed to perform for the same public agency. An FLSA regulation, 29 CFR 553.103(a), states that the phrase "same type of services" means "similar or identical services."

A February 18, 1992 Department of Labor (DOL) administrative letter ruling, concerning a county detention officer (jailer) who wanted to volunteer as a reserve deputy sheriff, concluded that:

  • An individual employed as a detention officer is engaged in law enforcement activities (public safety) functions. Some duties performed by a detention officer (jailer) are similar to those performed by a deputy sheriff. Moreover, public safety employees taking any kind of security or safety function within the same local government are never considered to be employed in a 'different capacity.'
  • In light of the legislative history of the FLSA Amendments of 1985 wherein the Secretary of Labor was admonished to strictly interpret the term 'different capacity', we do not believe that the term 'same type of services' should be interpreted to allow a detention officer to volunteer as a deputy sheriff.

We believe that the same reasoning would apply to prohibit a paid municipal corrections officer from also serving as a volunteer reserve police officer for a city. Under the reasoning above, the mere fact that both positions are engaged in public safety and security functions would have them performing the "same type of service" for the city. As such, the corrections officer should not be permitted to volunteer as a reserve police officer.

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What is the FLSA?
Reviewed: 11/13

The Fair Labor Standards Act sets minimum wage, overtime pay, equal pay, recordkeeping, and child labor standards for employees covered by the Act and not exempt from specific provisions. It is a federal law, enacted by the United States Congress in 1938. Initially, the FLSA applied only to private sector employers. However, in 1985 the U.S. Supreme Court concluded that Congress could apply the FLSA to state and local governments under the Commerce Clause of the Constitution. Since 1985, cities and towns have had to comply with the FLSA.

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Must municipalities comply with both federal and state overtime laws?
Reviewed: 11/13

Yes. Cities must comply not only with the federal Fair Labor Standards Act, but also with the Washington State Minimum Wage Act, which also applies to public agencies and contains overtime requirements. Most of the provisions of the two Acts are similar. However, when there is a difference, the municipality must comply with the most liberal law when viewed from the employee's perspective. Therefore, when state law provides greater benefits than the FLSA, the city must comply with state law. If the reverse is true, the city must comply with the federal law.

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May the provisions of the FLSA be waived in a union contract?
Reviewed: 11/13

The general answer here is "no."  If a collective bargaining agreement calls for benefits which are less generous than the FLSA, the agreement is invalid and the provisions of the FLSA take precedence.

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May a city or town be more generous in its personnel policy to employees than required by the FLSA?
Reviewed: 11/13

Yes. The FLSA is intended to establish a floor below which overtime and other benefits cannot be set. However, cities are free to establish local personnel policies which provide more generous benefits to employees.

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What is the white collar exemption?
Reviewed: 11/13

A threshold requirement for application of the white collar exemption is that the employee be paid on a salary basis. If the salary basis requirement is not satisfied, an employee cannot meet the requirements of the white-collar exemption and overtime must be paid.

The mere fact that an employee is paid on a salary basis does not alone qualify the employee as exempt. The exemptions are also based on the actual duties of the position (the job title alone does not determine whether the position is exempt or not). The FLSA regulations contain tests to determine if a specific position is exempt as an administrative, executive, or professional position.

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When are police and fire employees exempt from the overtime requirements of the Act?
Reviewed: 11/13

A special test exists for public safety employees. The FLSA provides a complete overtime exemption for any employee of a public agency who in any given week engages in law enforcement or fire protection if the agency employs fewer than five employees during the work week in law enforcement or fire-fighting activities.

For purposes of this exemption, the number of law enforcement and fire protection employees are considered separately. For example, if a city employs fewer than five employees in fire protection activities but more than five employees in law enforcement activities, it may claim an exemption for the fire protection employees but not for the law enforcement employees. Part-time employees are counted in determining the number of public safety employees, but true volunteers are not. (It is important to remember that an exemption from the overtime requirements of the federal FLSA does not mean such police officers and fire fighters are exempt from state overtime laws).

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When is overtime compensation required?
Reviewed: 11/13

The FLSA does not limit the number of hours that an employee may work, either daily or weekly. It merely requires that overtime must be paid for each hour worked in a work week in excess of the maximum hours applicable to the type of employment in which the employee is engaged. This usually means that overtime must be paid for hours worked in excess of 40 hours per week. The Act does not require that an employee be paid overtime compensation for hours worked in excess of eight per day, or for work on Saturdays, Sundays, holidays, or regular days of rest, so long as the maximum number of hours prescribed in the Act are not exceeded.

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What is the applicable work week for police and firefighters?
Reviewed: 11/13

For most public employees, the work week is a period of seven consecutive 24-hour periods. However, the FLSA contains a partial exemption in the overtime provisions for certain law enforcement and fire protection employees. Basically, the exemption allows an adjustment to the work period. The work period for police or firefighters may vary from the standard length of seven days up to 28 days. MRSC has a copy of the chart available which illustrates the maximum allowable hours in any given work period for police and firefighters before overtime pay is required.

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Do sick leave, vacation, holidays, or other such absences count towards the number of hours worked?
Reviewed: 11/13

No. Overtime need only be paid for all hours actually worked in excess of 40 in a week. This is the case even if the sick day (vacation, holiday, snow emergency day, etc.) is paid. However, some collective bargaining agreements do call for calculating sick days as compensable working time, and the employer must follow the terms of such an agreement.

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Must a city pay overtime if an employee works 10 hours in a day?
Reviewed: 11/13

Not necessarily. Overtime requirements are calculated on a work week basis and an employee may work 10 hours in one day without exceeding any overtime requirements.  (However, if a local policy provided for overtime over 8 hours work in a day, that policy would need to be followed.)

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Is on-call time counted as a compensable hour of work?
Reviewed: 11/13

This is a difficult area to answer on a general basis. The answer depends upon the extent of the employee's freedom during the on-call time. If employees are required to remain on the premises of the employer or so near as to preclude engaging in personal activities, the time will probably be compensable.

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May compensatory time be utilized under the FLSA?
Reviewed: 11/13

Yes. Public employers are allowed to provide compensatory time off in lieu of paid overtime. Employers are not required to provide a comp time option for employees, but it is an alternative available. The FLSA does provide a cap on comp time which may be accumulated by employees. The cap for employees in public safety activities is 480 hours of comp time, and for all other employees, the cap is limited to 240 hours. Cities may place a lower cap on accrued comp time if desired.

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May a city set cap on accumulation of compensatory time and what limits do other cities put on comp time accumulation?
Reviewed: 11/13

The Fair Labor Standards Act (FLSA) limits the accumulation of comp time to 240 hours for non-public safety employees and 480 hours for public safety employees (police and fire). It does not prohibit local governments from setting a lower limit on the accumulation of comp time. It is a recommended practice to limit comp time accumulation.

Limits may be placed on the number of hours of comp time accumulated and the time by which it must be used. A sampling of comp time restrictions from other cities shows that 40 hours is a common limit on accumulated time. The range is from 24 to 160 hours. Limits on the time period for the use of comp time (or overtime is paid instead) include 30 days, 60 days, 12 months, and within the same pay period.

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Must overtime be paid in the pay period in which it is earned under the FLSA?
Reviewed: 11/13

Not always. Although overtime must be calculated weekly, it is not required to be paid weekly. As a general rule, overtime earned in a particular workweek should be paid whenever possible on the regular payday for the period on which the week ends. However, when the correct amount of overtime compensation cannot be determined until later, it is permissible to pay it as soon after the regular pay period as is practicable. Payment should not be delayed beyond the next payday.

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May cities require an employee to take compensatory time rather than overtime pay?
Reviewed: 11/13

No. This is not legal under either federal or state law. An employee may choose, with city agreement, to take comp time rather than overtime pay, but the city may not require it.

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Is the time a non-exempt city employee spends traveling to a required job-related seminar in another city considered to be compensable time?
Reviewed: 11/13

Yes. The general rule under the federal Fair Labor Standards Act is that time spent by a non-exempt employee as part of the employer's principal activity must be counted as hours worked. Normally commuting time to and from the work site is not compensable. But when an employee is traveling out of town for the employer's benefit and at the employer's request, the travel time is considered part of the "principal activity" of the employer, so the time is compensable. See 29 C.F.R. 785.37 and 785.38.

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If a general employee (not a police officer or firefighter) is employed at two different jobs for a city and the combined hours for both jobs exceed 40 hours, must the city pay overtime?
Reviewed: 11/13

Yes. An employee is entitled to overtime if he or she works more than 40 hours a week, even when the total number of hours results from working two different city jobs. Overtime is calculated by determining the weighted average of the different pay rates. For example, overtime for a person working 30 hours at $10/hour and 20 hours at $12/hour is calculated as follows: (30 x $10) + (20 x $12) = $540, divided by 50 hours = $10.80 per hour of overtime. Alternatively, the employee and the city may agree that overtime pay will be based on the wage for the job that results in the overtime hours.

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May police officers volunteer their time and work for the city or county as volunteers?
Reviewed: 11/13

This issue involves the application of the Fair Labor Standards Act, which applies to all cities, towns and counties in which the police or sheriffs department employs five or more paid employees during the work week. The FLSA provides that a police officer may not volunteer his or her time to the city or county if the service he or she is performing is police work. If the employee is performing police duties then he or she must be paid for the work. A person cannot be both a paid employee of the city or county and an unpaid volunteer performing the same type of work. The hours worked as a volunteer would also count toward determining if overtime is required to be paid the police officer.

However, a police officer could volunteer and perform work for the city or county so long as the duties of the volunteer position are entirely different from those of a police officer. For example, a police officer could volunteer to work as a referee at basketball games for a city or county basketball league and compensation would not be required under the FLSA.

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When an employee is on stand-by does federal or state law require that he or she be compensated for the time spent commuting to the job when they're called back to work?
Reviewed: 11/13

According to the FLSA regulations at 29 C.F.R. 785.36:

There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.

This regulation seems to say that if the on-call employee has to travel back to his/her regular work place then compensation is not required. However, if an employee has to travel a "substantial distance" to sites other than his/her place of regular employment, then the travel time should be compensated. Unfortunately, there is no definition of what constitutes a "substantial distance."

The FLSA: The Public Employer's Guide states in 4.7:

While ordinary home-to-work travel need not be counted as hours worked, the home-to-work travel of an employee who has gone home after completing a day's work and who is subsequently called back to handle an emergency is generally counted as hours worked. However, time spent traveling to respond to an emergency call that occurs shortly before the regular work period is scheduled to begin probably need not be counted as hours worked, because the employee would have been required to report to work even if no emergency call had been made.

However, The Fair Labor Standards Act: A Public Sector Compliance Guide, Sec. IV at p. 14 provides:

 

LCF Practice Advisor:
. . . the DOL has expressly declined to formulate a general rule on the compensability of home-to-work travel for emergency calls. Employers should attempt to reach an agreement concerning this issue.

In light of these seemingly conflicting commentaries, the best practice would be for a city to establish a clear policy clarifying the times when on-call travel will be compensated. For example, compensation could be based on distance traveled, or be triggered by a certain number of call-back times within a one-month period.

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What is an "exempt" employee?
Reviewed: 11/13

This term refers to employees who are exempt from the overtime provisions of the federal Fair Labor Standards Act (FLSA) and/or the Washington Minimum Wage Act (MWA) in chapter 49.46 RCW. The FLSA sets the federal minimum wage and overtime pay requirements for employers, including local governments. Employees who work in professional, administrative, or executive positions are "exempt" for purposes of the FLSA's overtime requirements.

The MWA sets similar standards and has similar exemptions for Washington employers and employees. When there is a difference between the two laws, the municipality must comply with the most liberal law when viewed from the perspective of the employee.

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Must a father be given same leave benefits after childbirth as a mother is given?
Reviewed: 11/13

Yes. RCW 49.12.350 provides in part:

[T]he legislature declares that it is the public policy of this state to require that employers who grant leave to their employees to care for a newborn child make the same leave available upon the same terms for adoptive parents and stepparents, men and women.

And, RCW 49.12.360(2) implements that policy by providing that “An employer must grant the same [parental] leave upon the same terms for men as it does for women.”

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 May leave resulting from injury or illness covered by workers' compensation run concurrently with FMLA leave?
Reviewed: 11/13

Yes. FMLA regulations specifically address this; 29 C.F.R. Sec. 825.702(d)(2) provides in part as follows:

 

An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).

 

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How are the number of employees counted for purposes of the FMLA?
Reviewed: 11/13

The FMLA provides that although all public employers are covered by the Act, their employees are only eligible for leave under the Act if certain conditions are met. The employee must have worked for the city for at least a twelve month period (not necessarily consecutive), must have worked at least 1250 hours during the 12 months prior to when the leave would begin, and must work at a location where at least 50 employees are employed by the employer within a 75 miles radius.

 

When calculating the number of employees, the city must include part-time employees, seasonal or temporary employees, employees on leave, and employees that are shared with other jurisdictions. An otherwise eligible employee could qualify for leave under the FMLA if, on the day he or she applies for the leave, the city has more than 50 employees counted as explained above.

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How do the provisions in the federal Family and Medical Leave Act compare to the Washington State Family Leave Act in regard to parental leave?
Reviewed: 11/13

The federal act, FMLA, requires leave to be granted to care for the "birth" of a child and for a newly-placed adoptive or foster child. There is no age limit on the child being adopted or placed in foster care (although there is some limitation for state placements of foster children). Both male and female employees may take this leave, and it may commence before the actual birth or placement of the child.

The Washington Family Leave Act (ch. 49.78 RCW), requires employers to allow employees to use accrued sick leave, but only applies to employers with 50 or more employees at the work site (this applies to both state and local government employers). Washington law requires that all employers who provide any form of parental leave (other than maternity disability leave) to biological parents, must also provide this same leave for both adoptive parents and stepparents, and to men as well as women. The Act grants employees unpaid leave to be used to, among  other things, care for newborn or newly adopted children.  Note that employers must consult both the FMLA and state regulations and apply the most generous provisions.

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May an employer request a doctor's note from an employee to substantiate the need for sick leave?
Reviewed: 11/13

Yes. This question implicates the Americans with Disabilities Act (ADA), because a rule requiring a doctor's note can be viewed as a "disability-related inquiry." According to the U.S. Equal Employment Opportunity Commission (EEOC), a "disability-related inquiry" is a question that is likely to elicit information about a disability. Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (EEOC, 7/2000). Such an inquiry is permissible under the ADA only if it is "job-related and consistent with business necessity." According to the EEOC, it is permissible for an employer to request an employee to provide a doctor's note or other explanation to substantiate his/her use of sick leave:

 

  • An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor's note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so. (EEOC Guidance, at Question 15)

For general information on this topic, see MRSC's Americans with Disabilities Act webpage.

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May a city or county comply with affirmative action plan requirements in federal contracts without violating Initiative 200?
Reviewed: 11/13

Affirmative action was effectively abolished in Washington State by Initiative 200 (codified as RCW 49.60.400), passed by the voters in 1998. This statute contains the following exemption:

This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.

"State" as used in this statute includes a city or county. There are no court cases that have addressed this exemption. However, the state attorney general's office has analyzed this exemption in an "Issue Paper on Initiative 200" stating:

Section 1(6) [RCW 49.60.400(6)] provides that the Initiative "does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state." Federal agencies often require states to have "affirmative action" programs, but most allow discretion in how to operate those programs. Rather than specifying requirements, the federal law will call for state agencies to submit, as part of a funding request, a proposal describing how the state would meet the general "affirmative action" program requirements. The federal agency then approves or disapproves the program. On rare occasion, federal law will vary the nature of requirements depending on whether a certain component is prohibited by state law. Thus, the interaction of federal law and Initiative 200 could be somewhat complex for agencies who must submit proposals which will satisfy federal funding requirements without overstepping any limits imposed by Initiative 200. [32] The Initiative imposes two conditions to actions "excused" under this subsection: (a) the action "must be taken" to establish or maintain eligibility for a federal program, and (b) ineligibility would result in a loss of federal funds. The limits of this exception to the Initiative's "no-preference" rule, then, depend on whether federal funds would be lost if the state agency's practice were changed. In some cases, the agency's current practices are part of a contract with a federal agency, presumably subject to enforcement under contract principles. In other cases, federal law may provide the federal government with various enforcement mechanisms, including loss of federal funds. Thus, there may be arguments about the likelihood of loss of federal funds with regard to various programs. The Initiative also raises questions as to whether state agencies should look strictly to the letter of federal law in deciding what action "must be taken," or might also assess such factors as a federal agency's administrative interpretations of the law and the likelihood of impacts on federal funding. There may be occasions in which no federal statute explicitly requires "affirmative action" but where the administering federal agency contends that affirmative action measures are required. In such a case, the state agency must determine whether to look to the agency's policies or strictly to the letter of federal law.

So, if an affirmative action plan is required of a city or county through a federal program to establish or maintain eligibility for that program and eligibility for the program is necessary for the receipt of federal funds, then establishing such a plan would not violate Initiative 200 (RCW 49.60.400). The city or county needs to find out if and where (and probably under what authority) an affirmative action plan is required by a federal program in which it is participating.

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Are councilmembers covered by the employment provisions of the ADA?
Reviewed: 11/13

Yes. Although councilmembers and some other elected officials are not often considered regular employees (due to the minimal pay, particularly in smaller cities), the ADA covers such officials.

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Is there a waiver from civil service procedures for a person who would like to return to work as a fire fighter after leaving voluntarily about five years ago?
Reviewed: 11/13

No, there is not. RCW 41.08.050 provides that all appointments to a civil service position must be made solely on merit, efficiency, and fitness, which shall be ascertained by open competitive examination and impartial investigation. There is no exemption or waiver from civil service procedures for a candidate because they may have worked in the department years before but left voluntarily to take another job.

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Does a city civil service commission have authority to change employee job descriptions?
Reviewed: 04/13


No. That authority is given to the city council. For code cities, RCW 35A.12.020 requires the city council to establish by ordinance the "authority, duties and qualifications" of all appointive officers. Also, RCW 35A.11.020 provides:

The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees;

(Our emphasis)

For second class cities, RCW 35.23.021 provides that "The city council by ordinance shall prescribe the duties and fix the compensation of all officers and employees."

Additionally, there is nothing in the civil service statutes that vests authority in the civil service commission to create or alter a job description. And, RCW 41.08.110 provides:

Power to create offices, make appointments and fix salaries not infringed. All offices, places, positions and employments coming within the purview of this chapter, shall be created by the person or group of persons who, acting singly or in conjunction, as a mayor, city manager, chief, common council, commission or otherwise, is or are vested by law with power and authority to select, appoint, or employ any person coming within the purview of this chapter, and nothing herein contained shall infringe upon the power and authority of any such person or group of persons, or appointing power, to fix the salaries and compensation of all employees employed hereunder.

The civil service commission can certainly make suggestions regarding job descriptions, if it chooses to do so, but it is the city council that makes the decision (and the council could, of course, ignore the civil service commission's recommendations).

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Do you have any suggestions or guidelines for cities and counties that want to establish a bonus or incentive award program for salaried employees?
Reviewed: 04/13

The general rule for cities and counties is that employee incentive and award programs can be established and payments can be made to high performing employees under such programs. However, certain principles and restrictions apply to establishing and implementing such programs.

As described in AGO 1995 No. 13 (see below), it's permissible to structure such incentives and awards as a component of employee compensation in return for which city and county employees provide their services. Under such a compensation system, employees have an expectation of earning such incentives or awards when they are performing their work.

However, purely retroactive increases in compensation to city and county employees are impermissible because such increases would run afoul of constitutional principles (see below). To ensure an employee incentive program complies with constitutional restrictions, employee incentives and awards should be provided only to employees who have met established performance standards or goals that exceed normal employment requirements. According to the attorney general's office in AGO 1995 No. 13, "This would preclude purely retroactive increases in compensation, including bonuses where the employer decides "after the fact" that one or more employees should receive extra compensation for past services." In more detail, AGO 1995 No. 13 explains and concludes in relevant part:

Under these principles, charter cities, code cities, and charter counties need not have express statutory authority to adopt employee incentive programs. Instead, such entities may adopt such programs so long as they would not be contrary to any constitutional provision or statute. We have located no statute or constitutional provision that prohibits these local governments from establishing employee incentive programs, as defined in this opinion. Accordingly, we conclude that charter cities, code cities, and charter counties have authority to establish such programs.

We reach the same conclusion with respect to the other entities subject to your inquiry - second class cities, unclassified cities, towns, and non-charter counties, but for a different reason. The Legislature has given each of these entities statutory authority sufficiently broad to include adopting employee incentive programs as defined in this opinion. Under RCW 35.23.021, the city council of a second class city has authority to prescribe compensation of all city employees. "Compensation" is a broad term, generally encompassing remuneration in whatever form given in return for services. State ex rel. Funke v. Board of Comm'rs, 48 Wash. 461, 465-66, 93 P. 920 (1908); AGO 1974 No. 15, at 5-6; AGO 1988 No. 29, at 4-5. Thus, compensation would include employee incentive awards. Town councils have similar authority to fix the compensation of their employees under RCW 35.27.130. The Legislature has given unclassified cities broad authority, including the power to make all ordinances, bylaws, and regulations not inconsistent with the constitution and laws of this state "as may be deemed expedient to maintain the peace, good government and welfare of the city." RCW 35.30.010(8). In our opinion, such broad authority would encompass adopting an employee incentive program. Finally, under RCW 36.16.070, the board of county commissioners is authorized to fix the compensation of county employees. Again, this authority is sufficiently broad to include compensation under an employee incentive program.

We conclude this opinion with a caveat. Article 2, section 25 of the Washington Constitution prohibits granting extra compensation to public employees after the services for which the extra compensation is paid have been rendered. Article 8, section 7 of the state constitution which prohibits municipalities, including counties and cities, from making a gift of public funds also likely would prohibit such payments. See Christie v. Port of Olympia, 27 Wn.2d 534, 543-44, 179 P.2d 294 (1947) (where the state supreme court clearly suggests that purely retroactive increases in compensation to public employees would run afoul of these provisions). To ensure that employee incentive programs are consistent with these constitutional restrictions, incentives and awards should be provided only for meeting established performance standards or goals that exceed normal employment requirements. Such incentives and awards also should be structured as a component of the compensation in return for which city or county employees provide their services, in such a way that the employees have an expectation of earning the incentives or awards when they are performing their work. This would preclude purely retroactive increases in compensation, including bonuses where the employer decides "after the fact" that one or more employees should receive extra compensation for past services.

It’s important to note that such a bonus and/or incentive program can lead to unintended impacts on a jurisdiction’s retirement system. We recommend, for any jurisdiction that has or is considering implementing a bonus/incentive program, that you consult with your retirement plan administrator regarding how best to implement the program consistent with the intent and specific requirements of your retirement system.

Regarding sample policies, we have a Web page on Employee Recognition and Suggestion Award Programs that has several sample provisions and policies from a variety of cities and counties.

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What is the process for terminating an appointed officer in a mayor-council, noncharter code city?
Reviewed: 01/13

Because most appointive officers in noncharter code cities serve at the pleasure of the mayor, it is not necessary for the mayor to have specific reasons or instances of misconduct in order to terminate an at-will appointive officer. In the absence of a local contract or employment agreement, no particular notice or hearing requirements are required prior to termination. A city should be certain that an employee's termination is not based on any improper reason, such as age or sex discrimination, or because of the employee's participation in any protected political activity.

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Request for information on training resources relating to Americans with Disabilities Act (ADA) workplace accommodations.
Reviewed: 01/13

We suggest contacting staff at the Northwest ADA Center who offer both distance learning and onsite training on a wide variety of ADA related topics including "reasonable accommodation in employment."

See also the ADA National Network - ADA Resources & Training page billed as a "comprehensive 'one-stop' resource for information and training on the Americans with Disabilities Act (ADA) in employment, public services, public accommodations, communications, and technology access."

The Washington State Human Resources Department's website lists the following instructor-led course: LLPA: Preventing Discrimination, Harassment and Managing Accommodations (2 Days) that may be worth a look.

Online Training Resources

We also found the following online training resources relating to "reasonable accommodation" issues:

  • Online ADA training from Independent Living Research Utilization (ILRU) (part of the ADA National Network) on reasonable accommodation:
  • The Job Accommodation Network (JAN) is a free service of the U.S. Department of Labor's Office of Disability Employment Policy. Its Multimedia Training Library includes the following online training modules: 
    • "JAN's Understanding and Applying the Americans with Disabilities Act Amendments Act and Its Regulations" - This 43 minute training module and accompanying transcript and handout provides an overview of the changes made to the definition of disability, a summary of the guidance provided by the Equal Employment Opportunity Commission's regulations, and practical ideas for applying the new definition in the workplace. This module can be used to train hiring managers, HR, and supervisors and managers. Individuals can view the module at their computer or employers can use the module as part of a larger training. 
    • "Welcome to JAN's Interactive Process" - The key to successful accommodations is having an effective interactive accommodation process. This 23 minute training module and accompanying transcript and handout provides a sample step-by-step process that employers can use in their own workplaces to help them successfully accommodate applicants or employees. This module can be used to train new accommodation specialists, disability managers, and others responsible for initiating and maneuvering through the accommodation landscape. Trainees can view the module at their computer or use the module as part of a larger training.
    • See also their "JAN for Employers" page listing additional resources available to employers including state and local governments. 
  • See also Disability Law Lowdown Podcasts - Reasonable Accommodation Basics - An overview of "reasonable accommodations" (read the shownotes and transcript for show 09).

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Our city is thinking about hiring a high school student as a part time worker next summer. Are there any special considerations when we do this? The age would probably be 17-18 years of age.
Reviewed: 11/12

There are special considerations that apply if the student is under 18, which means he/she is considered a "minor." RCW 49.12.121;WAC 296-125-015(6). The basic considerations, focusing on those applicable to 17-year old minors, are as follows: 

  • The city must obtain a minor work permit before employing a minor. RCW 49.12.121-123; WAC 296-125-0200-.024 
  • The city must obtain a parent/school authorization form for the minor to be employed. WAC 296-125-0260-.027
  • L&I has enacted regulations relating to meal and rest breaks for 16-17 year olds. WAC 296-125-0287
  • L&I has also enacted rules relating to hours of employment, with different standards applicable during the school year and while on school vacations. WAC 296-125-027
  • The minimum wage for 16-17 year olds is the same as for adult workers (those 18 years of age and older). WAC 296-125-043.

Basically, the state rules, promulgated by L&I, relating to the employment of minors are contained in Ch. 296-125 WAC. See also L&I's webpage on "Hiring Teens."

There are also some federal law restrictions regarding employment of minors, with the threshold also being under 18 years of age. The Fair Labor Standards Act (FLSA) prohibits 16-17 year olds from working in certain hazardous occupations. 29 C.F.R. Part 570, Subpart E ("Occupations Particularly Hazardous for the Employment of Minors Between 16 and 18 Years of Age or Detrimental to Their Health or Well-Being"). With the possible exception of operating a motor vehicle, those FLSA restrictions regarding hazardous occupations would likely not be implicated in city employment. There are no federal rules limiting the hours 16 and 17-year-olds may work.

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Does RCW 41.04.010 require the veterans' preference for all applicants for public employment in a municipal corporation, or for just those applying for civil service positions?
Reviewed: 10/12

It's our opinion that the veterans' preference (scoring criteria status) must be applied whenever the hiring is determined by "competitive examinations" and is not limited to civil service competitive examinations. Note that RCW 41.04.010, which establishes the veterans' preference and which is in chapter 41.04 RCW dealing with "general provisions" regarding public employment (as opposed to civil service specifically), starts out by stating "In all competitive examinations . . . ." RCW 41.04.010 does not reference civil service, though the civil service statutes, specifically RCW 41.08.040 and 41.12.040, reference it.

Typically in cities and counties, it is only in the context of civil service that competitive examinations are given, but when they are given outside of civil service, the veterans' preference as provided in RCW 41.04.010 must, in our opinion, be applied. "Competitive examination" is not defined in the statutes, but the provisions of RCW 41.04.010 make it clear that the applicants for a position that are subject to a test or examination must, for the preference to apply, receive a score that would be compared to other applicants. So, if the test or examination merely determines whether the applicant passes so as to be further considered, the preference would not apply, because there would be nothing to apply it to. Note that the preference applies only to "the passing mark, grade or rating." (Emphasis added.) So, the preference could not be added to a non-passing score to make it a passing score.

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Request for information to assist in recruiting a new police chief.
Reviewed: 07/11

This is in response to your telephone inquiry requesting information to assist in hiring a new police chief for the city. A Web search turned up the following resources on police chief recruitment:  

In addition, the following material is available from the MRSC Library:

  • Selecting a Police Chief: A Handbook for Local Government, International City/County Management Association, Police Executive Research Forum, 1999
  • "Recruiting Key Management Personnel," IQ Report, International City/County Management Association, Vol. 33/No 3, March 2001
  • "Sobering Thoughts on Hiring a Police Chief," Public Management, 2002
  • "Choosing a Police Chief," Small Cities, 2000
  • "Anatomy of a Successful Police Chief Search," Public Management, 2000
  • "Sample Questions for Police Chief Candidate Interview," provided by Don Morrison, Local Government Institute, 1999

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If an individual works on a holiday, do they receive holiday pay plus time and a half or do they just receive holiday pay plus their regular pay?
Reviewed: 07/11

Neither the federal Fair Labor Standards Act (FLSA) nor the state Minimum Wage Act, chapter 49.46 RCW, require payment of overtime (time and a half) or other type of premium pay for work on a holiday.

Eligibility to receive overtime pay is based upon the FLSA and state minimum wage laws that, for most employees (other than fire and police positions and those positions that are exempt from the FLSA requirements), is triggered by work in excess of 40 hours within a seven-day work period. Overtime pay is due to such employees regardless of any locally-adopted premium pay provision, such as holiday pay. Since there are no federal or state requirements to provide such holiday pay, if such a benefit is provided, it would be provided on those terms established or negotiated by the local government.

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Request for sample policies allowing donation of vacation leave as cash payment to support hurricane relief and other humanitarian causes
Reviewed: 07/11

Several Washington jurisdictions have crafted policies to allow employee donation of vacation leave time to support the victims of Hurricane Katrina, including Seattle, King County, and Ellensburg and Anacortes.

You are probably already familiar with the IRS ruling to encourage leave donation programs, IRS Notice 2005-68. The following information is from the IRS Web site:

Article about the IRS Notice

Information from Washington Jurisdictions

Seattle 

Ellensburg

Anacortes

MRSC's legal staff has advised that city and county governments could pass an ordinances or resolutions allowing the donation of vacation leave to provide cash support for hurricane relief efforts. Such ordinances or resolutions would supersede existing city/county personnel policies regarding the cash out of unused vacation time.

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What have cities and counties been doing to make job accommodations for employees with multiple chemical sensitivities?
Reviewed: 07/11

We do not have any data in our files on what other cities or counties have been doing specifically to make "job accommodations" for employees with multiple chemical sensitivities. However, we did locate several resources on this subject through a Web search, including a searchable online accommodation Web site sponsored by the President's Committee on Employment of People with Disabilities which specifically addresses various possible accommodations for people with multiple chemical sensitivities:

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