Employment Law Q&A: What Local Government Employers Need to Know

MRSC recently held an employment law webinar entitled “Employment Law Essentials for Every Chapter of Employment,” which covered the variety of issues that arise during all stages of employment, from recruiting and hiring, to employment, promotion, recognition and discipline, and ending with separation from employment. While that webinar has come and gone, MRSC will be providing an updated version of the Employment Law Essentials webinar each year.

Webinar attendees submitted numerous questions that we deemed would be of interest to a broader group of individuals. Below are a handful of the questions posed under each 'chapter' of the webinar, along with MRSC’s answers.

Chapter 1: Recruiting and Hiring

The first chapter of the webinar covered legal and practical considerations when recruiting and hiring, including authority to hire, requirements for advertising and recruiting for a position, prohibited interview questions, pre-employment checks and the Fair Chance Act, and hiring incentives. For more information on these matters, visit MRSC’s Hiring Procedures webpage.

The questions received during the webinar focused on contacting a candidate’s current employer and the requirements for posting a job.

Must job postings list all benefits and compensation, along with the salary range or wage scale?

RCW 49.58.110(1)(a) requires an employer with 15 or more employees to include the following in their job postings:

• A wage scale or salary scale (or fixed wage, if appropriate); and
• A general description of all benefits and other compensation offered to the applicant.

With regard to benefits in particular, while every detail of the benefits package does not need to be listed, to meet the goal of transparency for job applicants (to reduce pay inequities and promote fairness), the posting should provide sufficient enough information so that applicants have a meaningful understanding of the benefits package.

During the hiring process, if a candidate lists “Do not contact employer” on their application, should the employer honor that request?

RCW 4.24.730 provides general immunity to an employer who discloses information about an employee’s job performance to a prospective employer who requests that information. Therefore, while a prospective employer could contact references, and a candidate’s prior or current employer can provide responses without risking liability, it is generally recommended the prospective employer respect the candidate’s wishes and not contact prior or current employers without permission.

One approach is to ask the candidate for permission to contact their employer during the final stages of the hiring process.

Chapter 2: Employment

The second chapter of the webinar focused on the multitude of issues that can arise during actual employment, including overtime pay and compensatory (comp) time, health insurance and other benefits, required and discretionary leave, and ideas for employee recognition and retention. MRSC covers these issues extensively on the Personnel & Human Resources webpage series.

The webinar questions centered around compensatory time and overtime pay, health benefits for part-time and seasonal workers, and the interaction between the various employee leave programs.

Must a public agency provide either the option of comp time or overtime pay to a non-exempt employee (i.e., an employee who is not exempt from the overtime provisions of the Fair Labor Standard Act)?

A public agency may (but is not required to) provide the option of comp time to its non-exempt employees in lieu of overtime pay (both would accumulate at 1.5 hours for each extra hour worked).

If allowed, the agency would identify comp time as an option—as part of a collective bargaining agreement, an employment agreement, or otherwise—under its personnel policies, to be taken in lieu of overtime pay at the option of the employee.

Must agencies provide health insurance to part-time employees?

Under the Affordable Care Act (ACA), employers with 50 or more full-time employees (FTE) must provide health insurance to their FTEs, who are defined in the ACA as those who average at least 30 hours/week or 130 hours/month. To be considered an FTE, the employee must have worked for more than 120 days for the employer. For more information on FTEs under the ACA, see the Internal Revenue Service (IRS) webpage, Identifying Full-Time Employees.

An employer is not legally required to offer health insurance to part-time employees working less than 30 hours/week. For more information, see MRSC’s webpage on Health Insurance Benefits.

Must agencies provide health insurance to full-time seasonal employees?

Seasonal employees are usually hired for a job that lasts six months or less, but they may work full-time during those months. An employee is considered full-time under the ACA if they work 30 hours/week or 130 hours/month.

Whether agencies must provide health insurance to seasonal employees depends on the 'measurement period' used by the employer. The governing body must adopt the measurement period used by the agency because:

1. Employer-provided health insurance is considered part of the employee’s compensation package, which is set by the governing body; and
2. The governing body controls the budget.

While measurement periods are too detailed to discuss in this blog, the table below provides a simple comparison of the look-back and monthly periods.

For more information, please visit the IRS webpage, Identifying Full-Time Employees.

If an employer’s locally adopted sick leave policy offers more hours than those offered under the Washington State Paid Sick Leave law, must the employer offer sick leave under both?

The Washington Paid Sick Leave (PSL) law requires that employers provide non-exempt employees with 1 hour of paid sick leave for every 40 hours worked. An employer can also choose to provide more generous leave (for example, 2 hours of paid sick leave for every 40 hours worked).

If the employer provides more generous leave, it will not also have to provide additional PSL leave, but it would still need to comply with PSL notification and other requirements. For more on these requirements, visit MRSC’s webpage, Sick Leave and Family/Medical Leave.

Can an employer request verification of an employee’s sick leave?

Under the PSL, an employer can request sick leave verification from non-exempt employees for leave taken for more than three days. WAC 296-128-660 provides more detail on this verification requirement.

Local governments can adopt a local policy that requires sick leave verification for exempt employees (any time period) or allow a longer timeframe before verification is required.

Must an employer continue to provide benefits when an employee is on leave from work?

A local government is not required to continue all benefits during an employee’s leave.

Requirements vary by type of leave and type of benefit. Employers must continue health benefits under RCW 50A.35.020, but whether they must continue health and medical expense savings accounts (e.g., HRA, VEBA and MERP) depends on whether those benefits are part of the group health plan (in which case, they must be continued) or whether collective bargaining agreements or local policy require they continue.

Similarly, whether a local government continues life insurance, disability, and retirement benefits should be set forth in a collective bargaining agreement or local policy.

Can an employee take sick or vacation leave while also on Paid Family Medical Leave?

Yes, an employee can choose (but an employer cannot require) to use accrued leave while taking Paid Family Medical Leave (PFML: RCW 50A.04.245).

If an employee chooses to supplement their PFML payments with accrued leave, their total compensation from the employer and the state cannot exceed their normal compensation.

Chapter 3: Discipline and Discrimination

During the chapter on discipline and discrimination, attendees had questions about ‘Loudermill’ rights.

When do Loudermill rights apply?

Employees who are not at-will (e.g., those covered by collective bargaining agreements) have a property interest in their employment and are entitled to a pre-termination hearing (called a Loudermill hearing) before they may be terminated.

Loudermill rights apply after the initial stages of disciplinary action and investigatory interviews have been completed. For more information, see Understanding Loudermill Rights: Balancing Due Process in Employee Discipline and Best Practices.

Chapter 4: Terminations, Layoffs and Retirement

The questions received under this chapter focused on the responsibility of an employer to continue health insurance after the employee leaves employment.

Must an employee’s health insurance be continued after being laid off from employment?

Employees who are permanently laid off are entitled to a temporary extension of health coverage under the federal COBRA program. Under this program, employers with 20 or more employees in the prior year must offer employees continuation of health coverage through COBRA.

Some agencies have adopted local policies allowing those who are temporarily laid off to have continued coverage under their existing agency health plan.

Conclusion

And that concludes our employment law webinar Q&A recap. If you have any questions about employment law, you can submit these through Ask MRSC. Additionally, keep your eye on MRSC's Upcoming Trainings for a future Employment Law Essentials webinar.