Public Employment Law and Human Resource Management

No. With the exception of certain county government positions covered by the State Personnel Act, North Carolina local government employers do not have to post or advertise any particular job opening unless a local ordinance requires them to do so. There are no federal or state laws governing employment advertising (other than the State Personnel Act – see below for local government coverage).

A local government employer that never advertises externally, however, may unintentionally discriminate against members of an underrepresented group if their recruiting practices result in members of an underrepresented group never receiving notice of vacancies and having the opportunity to apply for open positions. Such a practice, although not intentionally discriminatory, could be a violation of Title VII (which prohibits discrimination on the basis of race, color, gender, religion or national origin), the Age Discrimination in Employment Act, or the Americans with Disabilities Act.

General Statutes § 126-5(a)(2) provides that the State Personnel Act applies to the employees of county social services departments, county health departments and district health departments, area mental health, developmental disabilities and substance abuse authorities, and to local government employees whose primary job duties involve coordination of the emergency management response and whose salary is funded, in whole or in part, by federal homeland security or emergency management funds.

With respect to local emergency management employees, it is my understanding that it is not the intention of the Office of State Personnel to bring all local government employees who participate in an emergency response (for example, law enforcement or EMS) within the scope of the State Personnel Act. The State Personnel Act is meant to cover employees whose primary job responsibilities are in emergency management coordination, not emergency response. The fact that a fire department or EMS department reports to a person who holds the position of emergency management director or emergency management coordinator does not make fire and EMS workers subject to the State Personnel Act.

The regulations governing both state and local government SPA employees make clear that it is never permissible for an SPA employer to simply promote a single individual from within if it has not first advertised the vacancy within the agency or department. If it has advertised within the agency or department, it may select someone from within the agency for the position without advertising any further.

This means that an SPA employer cannot make a targeted hire from outside state or local government without advertising. The regulations governing local government SPA employment allow for directed promotion from within advertising only where there has been a formal understudy arrangement entered into with the express understanding that the understudy will move into the promotional position when the current occupant retires.

The Americans with Disabilities Act prohibits employers from asking job candidates to undergo a pre-employment medical examination before the employer has made a conditional offer of employment. The medical examination must be the last step before completion of the hiring process. If the medical examination reveals something about the applicant’s medical condition that was not known or obvious, the offer of employment may be withdrawn only if the condition makes the applicant unable to perform the essential functions of the job such that withdrawal of the offer is job-related and consistent with business necessity.

With one exception, neither federal nor state law requires a local government employer to offer benefits. Instead, the employer may offer whatever benefits it chooses to its employees – on a fully paid, partially contributory or fully contributory basis.

There is no general legal definition of full-time or part-time employment. Because employers may offer benefits on whatever conditions they please, employers are free on their own to determine how many hours an employee must work before becoming eligible for benefits – although sometimes the terms of a group insurance policy chosen by the employer may dictate how many hours an employee must work before being entitled to participate in the particular benefit plan. It would not be surprising for one local government employer to offer benefits to employees working 20 hours or more and for a neighboring local government employer to set the bar at 30 hours.

The lone exception to the rule that a local government employer may do as it likes with respect to benefits is found in the requirements for membership in the Local Government Employees Retirement System (LGERS). The North Carolina General Statutes require that a member jurisdiction enroll each employee whose regular job duties requires that employee to work at least 1,000 each year. So regardless of whether you classify the employee as “full-time” or “part-time,” if she or he regularly works 1,000 a year, the employee must be enrolled in the retirement system.

No. Because a local government employer does not have to offer any benefits to employees at all (although without some benefit package it is doubtful whether a local government could attract good employees), it may offer different benefit packages to different employees – for example, enhanced benefits to those in positions that are hard to fill or see frequent turnover, or, with respect to fields in which there are many qualified applicants and not that many positions, more limited benefits. The only limitation on an employer’s ability to offer different benefit packages is that it may not do so on the basis of race, color. gender, religion or national origin, age, disability or military status.

Yes. Nothing prohibits an employer from compensating an exempt employee for working in excess of the employee’s regularly scheduled hours if it so chooses. It is not required to do so, however. This is purely a matter of employer choice.

Many employers pay exempt employees an hour-for-hour bonus for extra hours worked based on what the salary’s hourly rate would be. Others give exempt employees paid time-off on an hour-for-hour basis. There is no limit to the number of hours of paid time-off that an exempt employee may accrue. In contrast, the FLSA limits nonexempt employees to 240 hours of accrued comp time – 480 hours for public safety employees.

Employers should note that compensatory time for nonexempt employees must be cashed out at the termination of employment. Employers granting exempt employees paid time-off do not have to cash out accrued time off unless the employer’s policy requires it to do so.

Neither federal law nor state law requires local government employers to give employees paid holidays or to pay a premium when employees must work on what would otherwise be a holiday. Local governments may adopt a policy of paying double time or some other sort of bonus for working a holiday shift if they wish to do so, but the federal FLSA does not mandate anything with respect to holidays other than that the employer pay straight time for the first 40 hours worked in a given workweek and overtime for hours in excess of 40. For law enforcement employees under the 207(k) exemption, straight time must be paid for the first 171 hours, regardless of whether or not any of those hours fall on a holiday, and time-and-one-half overtime paid for hours over 171, again holiday or not. In other words, legally, holidays do not have to be treated any differently than any other work day.

The rules governing the use of the 207(k) exemption [sometimes called the 7(k) exemption] can be found at 29 CFR 553.200 – 553.223. The 207(k) exemption allows employers to compute overtime for law enforcement and firefighters on the basis of extended work schedule – usually 28 days. Under 207(k), nonexempt law enforcement officers must work 171 hours in 28 days before the employer becomes liable for overtime. In other words, for law enforcement, hours up to and including 171 are paid at the employee’s regular straight time rate. Hours in excess of 171 are paid as overtime at the time-and-one-half rate. If the employer has adopted a policy that provides for use of compensatory time off (“comp time”) in lieu of cash overtime, then an officer would earn one-and-one-half hours paid time-off for every hour worked over 171 in that 28-day period.

Firefighters must work 212 hours on a 28-day schedule.

Employers may make use of the 207(k) exemption for law enforcement and firefighter work schedules of fewer than 28 days on a proportionate basis. For a work schedule of 14 days, law enforcement officers are paid straight time for 86 hours and overtime for hours in excess of 86. Firefighters are paid straight time for 106 hours and overtime for hours in excess of 106.

With the exception of jailers, the 207(k) exemption only applies to sworn law enforcement officers and to fire service members who have the authority to fight fires. The 207(k) exemption is not available for use in compensating EMS workers, unless they are cross-trained in and have the legal authority to engage in either law enforcement or firefighting.

YES! Absolutely! The idea that an employer does not have to pay for the hours between 168 and 171 is just wacky. Under the FLSA, an employer must pay a nonexempt employee for all of the hours that employee has worked.

Yes. Pursuant to 29 CFR 553.211(f), jailers are considered “law enforcement” for 207(k) scheduling and overtime purposes. This is true even though they may not be sworn law enforcement officers and may not be able to arrest or detain people and do not carry firearms. Civilian dispatchers, however, do not qualify for the 207(k) exemption, although sworn officers working dispatch do.

Yes. Employers may use the fluctuating workweek. See the question and answer below for an explanation.

NO! Under the FLSA, nonexempt employees may not do the same work as volunteers that they do as employees. If firefighters or paramedics show up at a call when they are not scheduled to work, then the employer must either send them home or pay them for that time. Firefighters and EMS workers may volunteer for other jurisdictions, and local governments may use firefighters and EMS workers employed by other jurisdictions as volunteers, but a person cannot be both an employee and a volunteer in the same capacity for the same employer.

Yes, they do. The fact that a holiday occurs during a week during which an employee is on FMLA leave does not increase the employee’s leave entitlement. The week still counts as a full week of FMLA leave. See 29 C.F.R. § 825.200(f).

When employees request FMLA leave for their own or a family member’s serious health condition, the employer can ask the employee to provide a medical certification before approving the FMLA leave. The website for the U.S. Dept. of Labor has a medical certification form that employer’s may use. It asks everything that an employer is permitted to ask, no more and no less, and explains the meaning of certain FMLA terms to the provider filling out the form. You can download the forms here:

• Form WH-380-E, for employee's serious health condition
• Form WH-380-F, for family member's serious health condition

Some other useful Dept. of Labor forms and documents:
Form WH-381: Employer’s response to an employee's request for FMLA leave: http://www.dol.gov/whd/forms/WH-381.pdf

FMLA Fact Sheet #28 from the Dep’t of Labor’s website (may be used to inform employees of their FMLA rights and responsibilities at the time leave is requested): http://www.dol.gov/whd/regs/compliance/whdfs28.pdf

Required FMLA poster:
http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

Yes as to sick leave and vacation leave; no as to comp time. Generally, an employer may require an employee to use accrued sick or vacation leave while the employee is on FMLA leave for his or her own or a family member’s serious health condition. This is true even where the employee does not want to use accrued leave for this purpose. Where the employer does not require the use of accrued leave, the employee may choose to substitute accrued paid sick or vacation leave for unpaid FMLA leave for a serious health condition. See 29 C.F.R. § 85.207(c).

For the birth or adoption of a child, an employer may require an employee to use accrued vacation or personal leave while the employee is on FMLA leave. It may not require an employee to use sick leave for this purpose. Again, if the employer does not require the use of accrued leave, the employee may choose to substitute accrued paid vacation or personal leave for unpaid FMLA leave for the birth or adoption of a child. See 29 C.F.R. § 85.207(b).

Compensatory time off accrued in accordance with the Fair Labor Standards Act may not run at the same time as unpaid FMLA leave under any circumstances. If an employee wishes to use accrued comp time to cover a period that would otherwise qualify for FMLA leave, the employer may not count such time off against the employee’s FMLA entitlement. See 29 C.F.R. § 85.207(i).

An employee on FMLA leave must be treated like other persons on a similar leave of absence. So if the personnel policy provides that employees on other forms of unpaid leave accrue sick and/or vacation leave, then employees on FMLA leave must also be permitted to accrue sick and/or vacation leave. If sick and/or vacation leave is running concurrently with FMLA leave and the personnel policy allows additional sick and vacation leave to accrue during this period, then for the period of FMLA leave during which sick and/or vacation leave are also running, the employee must continue to accrue leave. See 29 CFR § 825.209(h).

North Carolina General Statutes §§ 160A-169 and 153A-99 prohibit city and county employees respectively from campaigning for political office while on duty or from using government funds or supplies in support of a candidacy; G.S. § 126-13 contains a similar prohibition for state employees. These statutes do not, however, prohibit a government employee from being a candidate for local or state office on either a partisan or non-partisan basis.

Cities and counties may, however, adopt local ordinances that prohibit or place limitations on employee candidacy. Any local government employee considering running for office should check with either the human resources office, the manager or city or county attorney’s office to find out whether such prohibitions exist.

Finally, the federal statute known as the Hatch Act prohibits state and local government employees from running for partisan political office if the employee works in a position that has duties in connection with programs financed in who or in part by federal funds. For further information on the Hatch Act, see below.

The federal statute known as the Hatch Act (5 USC § 1501-1508) prohibits state and local government employees from running for partisan political office if the employee works in a position that has duties in connection with programs financed in who or in part by federal funds – whether loans or grants.

Where positions clearly do not have such duties, the Hatch Act does not apply and employees are not prohibited from running for partisan office (unless local ordinance prohibits such candidacies).

If the position does in fact have such duties, then the Hatch Act applies and the employee must either resign from employment before filing notice of candidacy or decide not to run.

If it is unclear whether the position is one that has such duties, then an inquiry may be made of the federal Office of Special Counsel by:

• writing to:     The United States Office of Special Counsel

                               1730 M Street, N.W.
                               Suite 216
                               Washington D.C. 20036

• e-mailing:       hatchact@osc.gov

• faxing:            (202) 653-5151.

The inquiry should include the employee’s name, address, where employed, position with the employer and the office for which the employee intends to run. The Office of Special Counsel will then contact both the employee and employer to determine what federal fund are involved, what the employee’s duties are, and whether there is any connection there is between the two.