Prevention of liability starts with auditing your agency’s personnel rules. Indeed, in an employment-related lawsuit, the applicable personnel rule is often “Exhibit A.” Each year, public agencies face changes to employment laws and regulations, best management practices, and internal changes to procedures. Thus, the outcome of a lawsuit may just depend on whether the agency has audited and updated their personnel rules to reflect these changes.
A personnel rules audit is often a detailed, methodical and lengthy process. As with most challenging projects, a personnel rules audit requires ample preparation and thoughtful strategy. Here are some key questions to consider in preparation for a personnel rules audit.
- When was the last time your agency conducted a personnel rules audit?
If your agency’s personnel rules hail from the typewriter age, it’s probably been too long since the last personnel rules audit. Laws change, best management practices change, and internal procedures change. Accordingly, your agency’s personnel rules will also need to change. During this past year, California enacted several landmark employment laws and regulations. On July 1, 2015, AB 1522, otherwise known as the “Paid Sick Leave Law,” took effect. On January 1, 2016, California’s new kin care leave law took effect. These laws created a new set of “protected leaves,” which in turn could affect an agency’s sick leave, absenteeism, and abuse of leave policies in its personnel rules. On April 1, 2016, new DFEH regulations on discrimination, harassment and retaliation took effect, which extend protections to interns and volunteers, and address gender identity and gender expression. An agency’s discrimination, harassment and retaliation policy should reflect this expanded protection.
- Do your agency’s personnel rules cover the essentials?
Sure, policies on leaves and discipline are often easy to find in most agency personnel rules. But there are many other essential policies that are often left out of personnel rules. Some employees work two or more jobs in addition to their agency employment. But do the agency’s personnel rules have an outside employment policy? Employees are issued IPhones, laptops, email addresses, or vehicles. But does the agency have an equipment use policy that regulates use? And even more specifically, does the agency equipment policy even reference email? Most public sector employees in California have due process rights to their employment. But do the agency’s personnel rules provide clear definitions of categories of employees such as “for-cause employee” and “at-will employee?” Finally, with disability discrimination claims on the rise, it’s no wonder that agencies are including a comprehensive interactive process policy in their personnel rules so that managers and human resources professionals have guidance on navigating the oftentimes choppy waters of the interactive process.
- Do your agency’s personnel rules “make sense?”
Personnel rules should be well organized and easy to read. Because personnel rules are often lengthy documents, a table of contents is a must. Headings and subheadings are also essential so that the reader has a roadmap and policies may be more easily referenced. Personnel rules typically cover numerous categories of policies. The breakdown of these categories should be based on similarity in personnel topics. For example, leave provisions should be grouped together. So if the policy on overtime is tucked away and hidden somewhere in the grievance procedure, it’s definitely time to take a closer look at how your agency’s personnel rules are organized.
- Do you know the “why” behind your personnel rules?
In order to effectively audit your agency’s personnel rules, it is essential to know the context behind the policies. Do you know why a policy in the personnel rules requires what it requires? Oftentimes, personnel rules are carried over into revised versions through the years. But little is known as to why. Is it because the law requires it? Best management practice? Neither? For example, although state and federal law requires an employer to grant an employee leave for jury service, the law does not require that agencies pay overtime-eligible employees for time spent on jury service. Nevertheless, agencies often pay overtime-eligible employees for time spent on jury service as an additional benefit pursuant to policy in order to treat exempt and overtime-eligible employees equally.
An audit of your agency’s personnel rules can seem like a daunting endeavor. But regularly auditing your agency’s personnel rules is critical, and can mean the difference between liability and prevention of liability.