Ah, what a joy it is to write about hiring a good employee, rather than disciplining an employee for poor performance. Time spent hiring the right employee is so much more pleasant than dealing with problems.

In my previous article, I discussed the selection process up to the point of the interview. Many interviews are conducted in the employer’s personal office and there is a “get to know you” exchange of information in which the employer tries to determine how comfortably the applicant will fit in with the organization. There are a large number of employees who can put on a false persona for an hour or two to give a favorable impression to the interviewer. There are some tools an employer may use to help overcome a false face.

A good place to hold an interview is in a conference room or other neutral room, rather than the interviewer’s personal office. The benefits of this are that the interviewer is not distracted by calls or other work, and the applicant does not have the opportunity to look around the office for clues as to how to relate favorably to the interviewer. Interviews should be conducted with at least one person asking questions and another person taking notes of the interview. Just as when some of us were litigators and we wanted to spend our time focusing on the witness’s answer, in an interview you also want to focus on the applicant’s answer and body language. Someone else should be taking notes so you are not distracted and can zero in on what is being presented.

The same basic list of questions should be posed to each applicant, although you will also use the interview to fill in any blanks in the résumé or to ask special questions you have about a particular applicant. The common list of questions should all seek behavioral information and the wording should be thought through in advance and designed to elicit key information about the person.

Instead of asking “how do you handle difficult subordinates?” you should ask the applicant to give an example of a difficulty that the applicant had with a subordinate and to explain how the applicant handled the difficulty. If the applicant’s response is merely theoretical or otherwise off-point, you should bluntly ask for a specific example. You also should avoid providing clues to the applicant on what you consider to be the best answer. Don’t ask: “how do you feel about working in a sometimes chaotic environment” or “how do you feel about working in a quiet office where you are by yourself most of the day?” Instead, ask the applicant: “Which employer provided you with the best work environment and why was it the best?”

Some experts feel that spending a long amount of time with an applicant allows us to see how the person holds up under scrutiny. If there isn’t time for that, you can still craft good questions to provide insight into the applicant’s real work behavior.

When an applicant becomes a likely choice, or one of the few remaining applicants, you should have the applicant(s) complete a formal application. The application should require the applicant to list and give contact information for every previous job and educational accomplishments.

The applicant should also sign a release authorizing your contact with prior places of employment and schools. You can provide a copy of the release if requested so that former employers and references will be more likely to give frank information. The application should also include a criminal history release and should end with an attestation clause in which the applicant verifies the truth of the information given in the application.

In a recent online poll of job seekers concerning their résumés, a majority said that they would lie in certain situations. Eighteen percent said they would “do whatever it takes” in falsifying a résumé if it would help to get a job. As an employer with a public trust, it is imperative to check all the information given by an applicant including education, job history, and references. Don’t accept excuses for any gaps or discrepancies between the résumé and the information independently obtained. If the applicant has an explanation for a discrepancy, then the applicant should provide proof to verify the explanation. A criminal history check is a basic for public employees; and, if the person will be handling funds, a credit report may also be needed.

Applicants should provide at least three people as references, and one of the references should be someone who has known the applicant for many years. Some employers put little stock in references since almost everyone can find people who will put in a good word for them. However, several times I have eliminated applicants because of a reference check.

First, the reference source should praise the applicant highly, not just give a “good” reference. Weak praise is a strong indicator that there are problems with the applicant. Second, you should have a list of open-ended questions to ferret out any weaknesses and follow-up to encourage conversation with the reference. Third, it is a perfect opportunity to verify with the reference any information given by the applicant on the résumé. For example, you may find an applicant’s claim of being responsible for a major innovation while working for a former employer was exaggerated; and the applicant actually played a minor role on a team that was responsible for that major innovation. Finally, you should make an effort to interview the applicant’s current supervisor if you have decided to make an offer. Tell the applicant you plan to do this.

When you offer a job, you should specify the salary, position and starting date in a letter to the applicant. You should include a paragraph clarifying that the letter does not constitute a contract of employment, such as:

Please be advised that nothing in this letter creates an employment contract, a property interest in the position, or otherwise alters your employment-at-will status.

Despite all these efforts and for a number of different reasons, sometimes an applicant just does not fit well. But if you have taken the time to follow this process, it is much more probable that you will hire an individual who is an asset to your office.

Finally, you should always be kind to those who do not get the job. It is important to acknowledge receipt of résumés, to inform persons when they are eliminated from consideration, and to include a kind or encouraging word in the rejection note.

As always, if you need examples or wish any assistance, I’m here to help.

If a judge needs assistance or advice regarding hiring, contact Brenda Rodeheffer at (317) 234-3936 or brenda.rodeheffer@courts.in.gov.

Thefirst task is to take a fresh look at the position when an opening occurs. Rather than just hiring someone, consider whether you want your staffing to continue as it is now, or whether you need a different configuration for the most effective use of your staffing dollars. For example, do you want to hire another court reporter or a court reporter who can also serve as an office manager? After what is needed has been determined, a job description should be prepared for that specific position. A job search should never be conducted until the job description has been thought out and prepared.

The job description needs to set forth the minimum educational, experience and skills qualifications. Most job descriptions also add qualifications that are not required, but are preferred. Consider whether the position is one that is exempt from the Fair Labor Standard Act (FLSA) or non-exempt. For most court employers, this is a relatively easy task as there are few exempt positions in the court. Unless the court employee supervises several persons or is an attorney position, it is likely the position is not exempt from the FLSA.

It is also important when hiring a new employee to identify the essential functions of the job, because an employer is required to provide reasonable accommodation for persons with disabilities. If an applicant with a disability can perform the essential functions of the job with or without accommodation, the applicant must be fairly considered alongside all other applicants. The main purpose of identifying the essential functions is not for the hiring stage, but later in case of an unforeseen medical need by an employee. If it has not been previously determined, then the essential functions of the job will have to be stated in order to decide if the employee can continue functioning in the job. The employee always has to be able to perform the essential functions and it is preferable, for both credibility and sensitivity reasons, to identify them before there is a legal or medical reason to do so.

The Indiana judiciary website is always a good, free place to post court job openings.

Once the job description has been completed, it is time to begin the actual search. Where to look for a new employee will depend on the job and the locality. For example, a paid posting was not required during the recent search for an Executive Director of the Indiana Board of Law Examiners. A press release was sufficient to obtain a remarkable roster of candidates. For most jobs, however, the employer will need to place an ad online, in a trade publication, in a newspaper, or to a government posting site. If you rarely have to seek new hires, you might save yourself dollars and time by consulting with others who have had to hire a similar employee. Cost of a classified advertisement, whether in print or online, has no relationship to the value of the advertisement. There are some job websites that will cause you to be flooded with unqualified candidates if you post a job opening. The Indiana judiciary website is always a good, free place to post court job openings.

When you do place an ad, be sure to put a deadline for submission of résumés for your own convenience. I have found it highly beneficial to require applicants to submit their résumés and cover letters by email. If you are concerned about making your email address public to the world, you can create a free email address just for the purpose of your hiring search. The benefit of accepting résumés only by email is that it allows you to keep those emails permanently on your computer, sort them into folders, and forward them to others. If you use a free online source such as “gmail” or Yahoo’s email, you can also work on your selections with complete privacy wherever you are in the world.

If you have the luxury of a large pool of applicants, organizing the applicants’ information and relevant qualifications into a spreadsheet is a great aid in making an objective comparison of the applicants. Such a spreadsheet provides in one document all the relevant information and allows the employer to make quick reference. You should leave one or more sections on the spread sheet for your special comments, positive or negative, noting things from the résumé, from recommendation letters, etc., that will jog your memory about the applicants’ specific characteristics.

Indications on the résumé that the applicant may have problems include the following: frequent job changes, unexplained gaps in employment, résumés or cover letters in which the current employer’s email or address is given as the applicant’s return address, and an indication that the applicant is just sending out résumés randomly with no real interest in the particular position.

For example, if you are advertising for a court reporter, and the applicant writes that he/she has a “goal of working in a corporate environment where there is opportunity for advancement,” you know that applicant is not right for you. The applicant is not only sending out the same résumé to every job posted, but the goal does not match your position. Other résumé “red flags” include an odd job history, an overqualified applicant, or a person who seems to be going from higher tier positions to lower tier positions. However, these are just red flags, and not items that should cause the applicant to not be considered at all. Particularly in the current economy, you may have good candidates who at other times would have been rejected as over-qualified and not a good fit, but now would happily fill the position and would be a real “steal.”

It is extremely important to pay close attention to the résumés as many applicants disqualify themselves at this stage. Following are some examples of disqualifying indicators found in résumés I have screened:

• a candidate whose educational achievements included being a “Voting Member of Student Government in College” and the “Published Author of an Article” without any further information about the publication or the article;
• someone whose name on the résumé didn’t match the name on the cover letter;
• an applicant who wrote: “Objective: I am seeking a position where I can turn fun into a career (I like my job and have fun at it, but really. . . fun as a career?);
• an attorney whose résumé proved that he was practicing law in Indiana without a license; and
• more than one attorney who listed his/her proudest accomplishment as a lawsuit in which the attorney was both a party and pro se counsel.

All of the above steps are the start of the process to prepare for the interview stage. The next contribution to this publication, Part Two, will discuss interviewing, background checks, including criminal history checks, selection and offers of employment. In the meantime, if you are hiring someone and want to place an ad on the Indiana judiciary website or need help now, give me a call!

If a judge needs assistance or advice regarding hiring, contact Brenda Rodeheffer at (317) 234-3936 or brodehef@courts.state.in.us.

Court employees are not county employees, despite receiving a W-2 from the county, working in a county-owned building, and using the county healthcare plan. They are also not regular state employees. They are public employees of the judiciary, also known as judicial or judicial circuit employees.

Article 3, § 1 of the Indiana Constitution establishes that the judiciary is an independent state power separate from the legislative and the executive departments. The judges of appellate courts, circuit courts and superior courts are constitutional officials of the state, not of the counties. As set forth in Woods v. Michigan City, 940 F.2d 275, 279 (7th Cir. 1991):

Indiana law reveals that judges of Indiana’s circuit, superior and county courts are judicial officers of the State judicial system: they are not county officials. Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D.Ind.), aff’d 705 F.2d 462 (7th Cir.1982). County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system. Id. Also see Parsons v. Bourff, 739 F.Supp. 1266 (S.D.Ind.1989), and State ex rel. McClure v. Marion Superior Court, 239 Ind. 472, 158 N.E.2d 264 (1959).

As either elected or appointed constitutional state officials, each judge in Indiana has the power to select staff for the judge’s own court, and each judge has the power to fire court staff without review or approval by any other body. Without this power, the judiciary would not be a truly independent department or branch of government. Along with the power to hire and fire is the power to set terms and conditions of employment.

The principle of the right of the judiciary to set its own terms and conditions of employment has been repeatedly addressed in Indiana. 1963 OAG No. 42 was written in response to an inquiry as to whether a statute regulating city employees applied to employees of the city judiciary. Attorney General Edwin K. Steers determined that the legislature did not intend that executive branch powers should be extended to control of court officers and employees, and that responsibility for court staff rests with the judge of the court. The opinion relied on the case of State ex. rel Bailey v. Webb, 21 N.E. 2d 421, 422-23 (1939).

This fundamental principle was repeated more recently in the case of State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). The Court wrote:

The judiciary is one of the three co-equal branches of government and its independence is essential to an effective running of the government. See Board of Comm’rs v. Stout, 136 Ind. 53, 58-59, 35 N.E. 683, 685 (1893) (Courts are an integral part of the government, and entirely independent; deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary.)

In particular, it has been held in a variety of contexts that the legislature cannot interfere with the discharge of judicial duties, or attempt to control judicial functions, or otherwise dictate how the judiciary conducts its order of business.

Despite the Constitutional provision and the clear case law upholding the principle of judicial independence, the question of court versus executive authority continues to arise, particularly at the county level.

The peculiar status of court employees causes unusual results, particularly in litigation. At least one court has held that in an action brought under the Fair Labor Standards Act, both the state and the county may be liable. Because the court is a distinct unit, there are federal decisions that exempt most courts from liability under the various discrimination laws because the small number of employees will not meet the minimum threshold. This is another reason to maintain the separateness of the court unit from the rest of the county. On the other hand, being a small work unit does not negate constitutional rights and other laws, such as the Family Medical Leave Act, which may apply regardless of the separation of judiciary and executive.

Because their employees are neither state nor county employees, courts have the ability to manage their offices more efficiently and provide more options for management. This independent status also gives the court an opportunity to discuss with employees the unique privilege and responsibility of being a judicial employee, as well as discussing the application of the Code of Judicial Conduct to judicial employees.

Because courts are independent, most courts will find it beneficial to have their own employee handbooks; however, some courts find it is a good option to adopt the county employee handbook for the sake of consistency. The decision depends upon how well crafted the county handbook is and what the judge prefers as far as hours of work and other provisions related to the functioning of the court. Before adopting a county handbook, it is important to review carefully and make certain that the handbook does not take away necessary control from the court. For example, for both practical and policy reasons, a court would not want to adopt a provision that allows the county commissioners to hold a hearing when a court employee is fired. There could also be provisions in a general county handbook that conflict with the Judicial Code of Conduct.

If there are no objectionable provisions, and the court decides to adopt the county handbook, the court should do so by letter to the County Commissioners. This action will preserve the court’s own powers and remind the commissioners of the court’s independent authority. A letter might state: “Indiana County Circuit Court has determined to adopt and apply the provisions of the Indiana County Employee Handbook for court employees. The Court reserves the right to withdraw its adoption of the Handbook at any time without notice. The Court may also supplement and/or amend portions of the Handbook with the Court’s specific provisions.” A warning: if the responsible judge does not notify the court’s employees of the decision to adopt or not adopt the county handbook, employees may assume that the county employee handbook applies to them. This wrong assumption can cause problems for both the judge and the employees. Even if the decision is to have no handbook at all, employees need to have the guidance of knowing the judge’s decision.

If a judge needs assistance and advice in reviewing and determining whether to adopt the county handbook, contact Brenda Rodeheffer at (317) 234-3936 or brodehef@courts.state.in.us.

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 USC § 4301 et seq., was enacted in 1994 to protect those who enlist to meet the needs of a voluntary military. USERRA was written to encourage non-career service in the armed forces, to minimize disruption to the lives of persons performing service, and to prohibit discrimination against persons because of their service. It does this by establishing the right of every enlistee to return to the employee’s current civilian job after the enlistee’s active military duty ends.

USERRA applies to every employer, including Indiana courts. Any person, institution, organization, or other entity that pays salary or wages for work must comply with USERRA. 38 USC § 4303(3) specifically includes state, federal and governmental agencies. Any employee who leaves civilian employment because of a call to active duty in the armed forces is entitled to re-employment in the civilian job at the end of active duty service if minimal requirements are met. Attending a service academy is considered active duty service under USERRA. The requirements to maintain a right to the former civilian job are that:

1. the employee, or an appropriate officer of the uniformed services on behalf of the employee, give notice to the employer of the active military duty;
2. the total length of military duty away from the civilian employment does not exceed five years;
3. the employee is honorably discharged or in honorable status at the end of active duty, and
4. after active duty ends, the employee makes a timely request for reemployment. 38 USC § 4312.

The initial notice by the employee that the employee has been called to duty may be verbal or written. In fact, it can consist of nothing more than a casual remark that the employee is leaving the job because the employee was called to active duty. USERRA encourages employees to give notice as soon as possible, but the law does not require any specific amount of notice. The Department of Defense does recommend to servicepersons that they give thirty days notice. If there is an immediate call to duty that precludes notice, notice is not required. The employer does have the right to ask for a copy of the military order, which may be provided before or after the employee leaves.

When the employee leaves the civilian job, the employee is not required to inform the employer to hold the civilian job for the employee. 20 C.F.R. § 1002.88 provides:

. . . When the employee leaves the employment position to begin a period of service, he or she is not required to tell the civilian employer that he or she intends to seek reemployment after completing uniformed service. Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment after completing service. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service.

The employee can formally resign or retire and still enforce a return to civilian employment. When the active duty ends, the employee’s only obligation is to make the request for restoration within specified periods of time, and for periods of service of more than thirty days, to produce documentation of the service if requested by the employer. For brief calls to duty of less than 30 days, the employee must report back to work at the end of an 8-hour rest period following completion of service. For periods of duty of 30 days to 180 days, the employee is allowed 14 days back at home before returning to work. For periods of duty of 181 days or more, the employee is allowed to wait up to 90 days before returning to civilian work. If the employee needs medical care as a result of the military service, the employee is given additional time to preserve the civilian job.

Like other employee protection statutes, USERRA has a provision that makes it illegal to retaliate against an employee for use of USERRA rights. It is also illegal to retaliate against an employee who helps someone else in the use of USERRA rights. 38 USC § 4311. There are some exceptions to being allowed to USERRA’s right to return to employment, such as where the civilian job was only a temporary position. USERRA has specific provisions regarding accumulation of time benefits, discharge from employment after a return from the military, and pension retention.

In addition to USERRA, Indiana has enacted laws to encourage and reward this military service. Indiana Code § 10-16-7-5 requires that state and local governmental agencies allow employees to leave for training or active duty, and to maintain for up to fifteen days the employees’ regular pay while on training or active duty. Because individual employers rarely have to apply the statutory rights of military employees, it is best to consult with an attorney well-versed in employment law if an employee leaves for military duty.

If your court needs a consultation regarding statutory rights of military employees, contact the author at 317-234-3936 or email her at brodehef@courts.state.in.us.

Experts on employee management are divided regarding whether employers should conduct annual performance appraisals of staff.   Judging by the show of hands at the recent Judicial College seminar on office management, Indiana’s judiciary is also divided in its use of performance appraisals.  The purpose of this article is to succinctly set forth the pros and cons so each court may make its own decision.

A substantial number of management and human resource experts no longer use traditional performance appraisals.  The reasons for abandoning the tradition include: most people dislike giving and receiving the appraisals, it takes a significant amount of time, it will produce an inaccurate record, and appraisals are a poor substitute for good management.  At least one acknowl

edged business management expert, W. Edwards Deming, argued that performance appraisals breed resentment and cause poor morale even for the best-performing employees.  Take the example of an employee who is rated high in multiple categories, but is given a “meets expectations” in attendance.  More likely than not, the employee will be angry about the “meets expectation” rating for attendance, rather than being motivated by the high marks in other categories.  The trend against performance appraisals is increasing.  UCLA professor Samuel Culbert, in collaboration with Lawrence Rout of the Wall Street Journal, has written a book, Get Rid of the Performance Review, in which he excoriates the common rationales for giving performance appraisals.  Of course, Dr. Culbert and others who argue against performance appraisals are not dispensing with the need to assess employee performance.  Rather, they promote giving on-going, reciprocal feedback and working directly with each employee to promote a sense of trust, true teamwork and improved performance from both supervisor and subordinate.

Nevertheless, performance appraisals are a strong tradition in the office workplace.  There are few white-collar souls who have not felt the dread of meeting with a supervisor to receive a performance appraisal.  The number one reason for giving performance appraisals is to determine who will receive raises and how much.  Few government organizations have the luxury of giving raises in the current economy, which means the primary reason for giving performance appraisals does not currently exist for most courts.  The next major reason for performance appraisals does not change with the economy: to aid employee development.  A performance appraisal is an opportunity for a supervisor and subordinate to share observations, give feedback, set objectives and goals, and discuss issues and concerns.  For many supervisors, none of this will be accomplished without the structure of a formal appraisal and evaluation session.

If an employer decides to conduct performance appraisals, the employer must accomplish the process correctly or the performance appraisals could become litigation landmines for the employer.  Too often the only written records of performance in employees’ files are annual or infrequent performance appraisals.  These can become primary documentary evidence in a discrimination trial.  If the supervisor has not done a good job of documentation, the supervisor essentially makes the employee’s case against the employer.  “Isn’t it true that in 2009, you rated John as highly dependable in all categories?”  Therefore, if a court chooses to do formal evaluations, it is crucial that the court does the evaluation correctly.

Keys to preparing an accurate and valuable performance appraisal include:

Be Prepared.

The performance appraisal should not be done in a vacuum, nor should it reflect only the performance of the last thirty days.  Throughout the year, the supervisor should be giving feedback to the employee on performance, good and bad.  Simple notes stored in a fact file only for the supervisor’s eyes can be kept to document this feedback.    The employee should not be surprised at what is written in the evaluation because the employee should have heard it all previously.

Don’t Squeeze It In.

Do not conduct the performance appraisal until the rater has had time to give due consideration to the judgment calls in a performance review.  Then the supervisor/subordinate meeting needs to be scheduled when there is plenty of time to discuss the ratings.  Appraisals cannot be done in a hurry.

Be Accurate.

Inaccuracy is probably the most common error and the one most likely to cause future problems.  Subjectivity cannot be eliminated from an appraisal, but there must be a thorough assessment of performance in multiple categories, good and bad. For example, when an employee has a habit of coming in late, this needs to be recorded even if the employee’s overall performance means that the tardiness is only a minor issue.  It is much easier to deal with an issue and/or keep it from becoming a major problem if it is at least noted and a brief discussion is held.

Recognize Strengths.

Each person wants to be a valuable asset to the individual’s organization.  No one aspires to be a slacker.  Performance appraisals should be used to have a meaningful conversation about the employee’s strengths and how to use those assets to most help both the organization and the employee.  A good performance appraisal will provide the employee with a roadmap on how to be of greater value to the organization.

Follow Through.

A supervisor who has taken the time to do a performance appraisal should keep that good management momentum and follow through with informal meetings and notes.  If this is done, the next year’s evaluation should be easier as well.  In addition, the overall performance should have improved due to the consistent constructive criticism and praise.

Each judicial supervisor will need to make an individual determination as to whether or not to give performance appraisals.  Giving or not giving performance appraisals is only one component in management of employees.  All supervisors must ensure that each employee understands the job, each employee is provided the tools needed to accomplish assigned tasks, and each employee is recognized for positive achievements.  In an ideal office, every employee will be dedicated to meeting the goals of the court.  This won’t happen unless the court encourages, mentors and coaches the employees as part of a team serving the public.

If you need assistance with drafting or setting up an employee performance appraisal, or have any other concerns related to this topic, call your friendly legal advisor on employment law at 317-234-3936 or email her at brodehef@courts.state.in.us.

Cell phones have changed our daily lives in many ways.  No more concerns about not being able to get a message to family members when you will be late.  No more exorbitant add-ons to hotel bills because you have to make a long distance call.  No more wondering what the cost of a widget is if you have a smart phone.  Cell phones have also impacted the work environment.

It almost goes without saying that courts must compensate employees for ALL hours worked according to the Fair Labor Standards Act (FLSA), except for those employees exempt from the FLSA.  Almost all court employees are nonexempt, including bailiffs, court reporters, and probation officers.  Exempt employees are attorneys, full time managers, and other limited categories.  Employers have a legal obligation under FLSA to know when employees are working so the employees are properly paid.  It is a duty the employer cannot shift to the employee.  This provision of the law has not kept pace with our changing world.  With the widespread use of smart phones and cell phones, employees are increasingly “on call” for work all day, every day, with or without the employer’s permission.

What obligation does a Court employer have if a Judge sends out an informational after-hours email to a bailiff regarding the following day’s docket and the bailiff responds with a personal cell phone?  What obligation does a Court employer have if a probation officer is in a car crash while checking messages on a smart phone provided by the county?

This article will provide some guidelines for our courts; but this area of the law is in flux and case law has not yet answered these questions.

Courts must compensate nonexempt employees for all time worked. Courts generally do not have to compensate an exempt employee who might answer an email or text message after regular work hours.  Here are some factors a court should consider to determine if a nonexempt employee’s use of technology after regular court hours should be compensated:

• court liability is the same whether the smart phone is provided by the employer or obtained by the employee independently;
• it doesn’t matter whether the employer asks the employee to respond after-hours or whether the employee does so voluntarily or even contrary to instructions; and,
• FLSA does not require compensation for de minimis extra work.

There were several federal lawsuits filed in 2009 in which employees have contended their employer violated the FLSA by failing to pay for off-duty emailing and texting.  None of these cases has yet resulted in a clear decision as to when such off-duty email and texting is compensable.  On legal websites geared to answering employees’ questions about workplace rights, there are frequently questions by employees as to whether they have a right to compensation for answering calls and email after regular work hours.  An employer may be blissfully unaware that the employees expect compensation until a lawsuit is filed two years after the employee has left court employment.

To protect the court and the county against lawsuits, court employers should have a written policy concerning employee compensation for after hours’ use of cell phones, smart phones, and the internet.  The policy should require nonexempt employees to regularly report all hours worked.  If a court becomes aware an employee is working after hours, the court should send a written reminder of court policy and take appropriate action, if the extra work is more than de minimis.

Several federal cases in 2009 held work that takes no more than ten minutes is de minimis and an employer was not required to compensate employees for de minimis work.   Therefore, if a judge emails the bailiff at night and asks the bailiff to prepare for a large morning conference, and the bailiff responds “I will,” there is no compensation problem.  On the other hand, compensation should be given if an employer demands an employee be ready to respond when off duty, if a particular exchange of communications is extended for more than de minimis time, or if work-related communications occur on a regular basis after working hours.

An employer can reduce risk by issuing smart phones only to exempt employees; by having and enforcing written policies which prohibit nonexempt employees from using smart phones or the internet for work use after hours; and having written policies for employee compensation for use of electronic communications outside of the regular workday.

A court may want to pay additional compensation to some nonexempt employees in order to have access to those employees at all appropriate times.   An example might be probation officers who need to receive and respond to emergency information.  It is entirely appropriate to give smart phone equipment to such employees and to develop a policy to give adequate compensation for after-hours work.

An employer who provides a cell phone or smart phone to an employee should establish a policy regarding use of the cell phone while driving.  Studies have proven there is an increased risk of accidents when a driver uses a cell phone. This use rises to the level of grave danger when a driver is texting.  There are no Indiana cases which address the issue of employer liability for an employee’s use of a cell phone while driving.  Some jurisdictions have held an employer may be liable is an accident occurred while an employee discussed business on a cell phone.

Each employer will have different comfort levels as to how restrictive the policies should be.   Some potential options include:

• Prohibit the use of a phone in the car;
• Allow only hands-free use of a phone;
• Require an employee to stop the car before using a phone;
• Caution an employee against the use of a cell phone in dangerous conditions, such as in heavy traffic or bad weather;
• Have a policy that an employee is acting outside the scope of employment while using a phone while driving; and,
• Requiring an employee to reimburse the employer if the employer is found liable for the employee’s use of the cell phone.

It is important for a court to consider all options in deciding on office policy for cell phone use.  The author has developed a template for a cell phone policy which is available to any court or probation office upon request.  But keep in mind, a policy only has value when it is reinforced by the actions of the employer.

Personally, I love being able to respond instantly to email requests from my employer and the courts.  I like clearing my email box of junk or unnecessary emails before I even arrive at the office, and having a smart phone definitely increases my productivity.  Cell phones and smart phones will not go away.  The use of smart phones is only going to increase until the next leap in communication devices.  If you haven’t done so yet, now is the time to adopt a policy regarding cell phone use.

If you need assistance with drafting or reviewing a policy, or have any other concerns related to cell phones or smart phones, call your friendly legal advisor on employment law at (317) 234-3936 or email her at brodehef@courts.state.in.us.

Social media is changing faster than any one can keep pace.  Yet, it is such a vital source of information today that an employer is at risk if he or she chooses to ignore the phenomenon.  Employers need to be aware of the opportunities offered by social media in order to do the best job of selecting and supervising employees.  According to CareerBuilder, twenty-two percent of employers used social networking sites to screen potential employees in 2008 and this percentage had jumped to forty-five percent by June 2009.   Because all judges have an ethical duty under Rule of Judicial Conduct 2.12 to require staff to act in a manner consistent with the judge’s obligations under the Code, judges will want to be in the group of forward-thinking employers who use social media to their advantage.

The first and most practical use of social media for employers is in vetting a job applicant. Add internet searches to your due diligence in checking the backgrounds of job applicants.  The primary sites to search are Google and major social network sites (e.g., MySpace, Facebook, and LinkedIn).   YouTube and Twitter are other possible sources of information for applicants.  When doing background checks, keep a record of your visits to the various social media sites.  Note the date that you checked each site and what you did, or did not, find there.  If you did find relevant information, print or save the screenshot for placement in the applicant’s file.  You may find that either the applicant has not enrolled in a social network site or has set the site up with a privacy screen so that only confirmed friends may see the site.  There is always some information to be gained, and hopefully it is a positive verification of the information already acquired.

When using Google, simply type in the name of the applicant, and if the applicant has a common name, type in any additional information that might narrow the search.  As with all things Googled, it is helpful to use variety in your search terms when vetting an applicant. For example, on an applicant with a very common name, typing in the applicant’s name along with names of schools attended may provide information about Twitter status.  You may discover an applicant’s Facebook account by typing in the applicant’s hometown.  Google is a particularly rich source for information on active attorneys.

Anyone may do a search on MySpace for free at myspace.com.  If the applicant has a profile but made it a private one, you will not be able to see it.  Facebook and Twitter are also free, but you have to set up an account with each one to use them.  When you go to facebook.com, the centerpiece of the page is the sign up for an account, and twitter.com also has a prominent “Sign up now” link.  Be sure when you sign up that you make your site private.  You may ignore requests to be “friends” unless you want to start using the site personally.  If anyone mentions that you were sent a link to be that person’s friend, you can explain that you set it up to check on an applicant but that you do not use it.

The primary reason for a social network search is that it may reveal relevant information about the applicant.  For example, a court would not want to hire an applicant who uses outrageous language and posts binge-drinking images on a site open to the public.  Although there is a limited danger that you might discover irrelevant information, it is your responsibility to disregard all such information (race, gender, nationality, disabilities, religion and political party affiliation and opinions).  You may be open to a discrimination claim if you do not hire the applicant; however, if you disregard the information and hire the person, any claim would be eliminated.  If there are both relevant and irrelevant discoveries, simply download the relevant, disqualifying information and keep that with your record on which applicant you selected.

For current employees, social networking can be a problem.  It can become social “not-working.”  A potential issue is an employee posting inappropriate material about the court and parties to cases before the court.  Courts should have a written policy for employees clearly stating prohibited posted information on their personal postings on any type of internet site.  This is a policy that typically will be in addition to or an amendatory of existing internet and email use policies.

Employees also need to be given guidelines as to what information should be shared, or not shared, with you from social sites.  For example, employees should not share any information with you about pending cases.  However, you do want to know if your bailiff is reporting that he is drop down drunk every Saturday at the bar on the downtown square.  Additionally all judges who have a social site should consider carefully before giving employees or local attorneys access to that site.  You might discover more about them than you want to know and vice-versa.

Social media also has a role when employment must be terminated. For involuntary terminations, the employee’s access to the employee’s office computer should be under control before or at the time that the termination occurs.  Once you give notice to the employee that he/she no longer works for you, the employee must have no means to access the court internet or email system.  Even for voluntary departures, it is recommended that the employee’s access to the system be deleted sooner, rather than later.  It is advisable to review the past email and internet use of a terminated employee to determine if there has been a possible violation of the internet and email policies, or an abuse of time.  Such violations may mitigate or negate damages in any future lawsuit.

This information may also give you insight into how much your current employees are using the internet and how well you are managing your employees’ time.  In addition, the review may provide you with information that you need on current work issues, such as inquiries from the State Court Administration about forms that have never been completed.  The best news is if the search reveals nothing new to you.  However, if the search is revelatory, the value may be priceless. Employees have up to two years to file a cause of action against you on various grounds.  Finding out about the employee’s actual use or abuse of your policies can provide an excellent defense against litigation that you don’t even know exists.  Waiting until litigation is filed is too late as the hard drive will probably have been cleaned or destroyed by that time.  Make it part of your regular process for an employment termination to do this review of the computer use.

If you need assistance with drafting or reviewing a policy, or have any other concerns related to social networking, call your friendly legal advisor on employment law using the contact information below.

Trial courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at 317/234-3936 or brodehef@courts.state.in.us.

There are still people though who do not understand proper workplace behavior, as well as people who believe an erroneous myth that any lewd joke is a legal cause of action.

Five years after the first woman was appointed to the United States Supreme Court, in 1986, the case of Meritor Savings Bank v. Vinson was decided.  It established that sexual harassment is a violation of Title VII, the Civil Rights Act of 1964.  More than twenty years after that decision, workplaces have been altered forever and mostly for the better.  There are still people though who do not understand proper workplace behavior, as well as people who believe an erroneous myth that any lewd joke is a legal cause of action.  The tension between those two groups means that sexual harassment is still a fertile ground for lawsuits.  Because Title VII applies to the courts in their role as employers, it is also one of the few significant areas in which the court is exposed to liability as a potential defendant.

Simplifying the current law on sexual harassment to its essence, unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harassment when it affects the conditions of employment and creates an abusive environment.  There are many qualifications to this broad definition, such as whether the conduct is offensive to both the individual and to a reasonable person, the community standards, the frequency of the conduct, the severity of the incidents, and whether it actually interferes with work performance. When the sexual harassment comes from a peer, the employee victim has the responsibility of reporting the harassment before there can be any liability to the employer.  When the conduct rises to the level of actionable sexual harassment and it is by a supervisor, the employer is liable unless the employer has exercised reasonable care to prevent and correct any sexual harassment.

As part of the employer’s duty to exercise reasonable care, it is crucial that the employer have a published policy for employees on how to report sexual harassment.  The keys to a good policy for reporting are:

• Actual Distribution. The best policy is worthless if the employees don’t have a copy.  The best practice is to distribute the policy individually to employees and have each one sign an acknowledgement that the policy was received.
• Easy to Access. Whatever your report mechanism, it should be one that employees find easy to access.  The person designated to receive complaints must be someone who is readily accessible.  This also means the policy needs to be reviewed and updated to insure its continuing accessibility.
• Multiple-means of reporting. If the person designated to receive complaints is the offender, there must be an alternative person designated so that there is a way to report any offense.  This also helps in the event that the designated person is unavailable for an extended time, such as a medical leave.
• Confidentiality clause. The policy should have language assuring that the complaint will be kept private, except when revealing information that is necessary to conduct an effective investigation.
• Promise of No Retaliation. If the policy implies that there may be consequences for reporting a false complaint, employees will be reluctant to report possible violations.  It is better to receive inconsequential complaints, than to miss serious concerns.  Employees need to know that there will be no negative consequences if the policy for reporting is followed.

An appropriate complaint mechanism goes a long way towards protecting your employees from an unacceptable work atmosphere and in protecting you from liability for behavior that may be unknown to you.

As always, if you need assistance with drafting a policy, handling a complaint, or any other concerns which relate to this issue, call your friendly legal advisor on employment law at (317) 234-3936 or email her at brodehef@courts.state.in.us.

Because discrimination laws are typically dual-edged swords, and for example you cannot discriminate against either women or men, the Age Discrimination in Employment Act is unique. It only prohibits discrimination against persons age forty and older.  You may discriminate on the basis of youth.  Nevertheless, unless the question relates to job qualifications and concerns whether an applicant is too young or inexperienced, do not ask questions that show interest in an applicant’s age. “How old are you?”  “What is your birthdate?” “When did you graduate from high school?”  These questions are potential minefields for litigation.  Be cautious.  Even though the person may appear to be under forty years of age, cosmetic surgery and similar options are on the rise as people try harder to find employment.

Because of the traditional female role in childcare, family status is another forbidden zone of inquiry.  Marriage, children, future family plans and the job of a spouse are all not relevant questions to ask in the hiring process.  Even if it is obvious that an applicant may be in her last trimester of pregnancy, you may not ask about the pending birth or her future arrangements for child care.  If an applicant volunteers that he/she has children, don’t ask any follow-up questions about it or make any comments, including written comments which are discoverable.  Instead, tell the applicant of the required work schedule and then ask if the applicant is able to work those hours.  You may certainly ask if the applicant can travel if the job will require it.  While you may not ask about a spouse’s job, you may explain conflicts of interest and ask if the applicant has any potential conflicts.  You may not ask about maiden names or name changes in order to avoid charges of gender discrimination.  However, if you are ready to do a background check, you may ask if the applicant needs to give you any further information in order for you to verify prior employment and education.

You may not ask any questions during the hiring process about nationality and birthplace as they may be used as evidence of nationality discrimination.  You may ask if the person is legally authorized to work in the United States, and if you hire the applicant, you then must obtain proof of authorization to work in the United States.

Asking about clubs and affiliations can be evidence of multiple violations of discrimination laws:  political affiliation, gender, race, religion.  Even if an applicant exercises poor judgment and lists affiliation in an organization that is not relevant to the job, you should not ask questions about it. It is not legitimate to hire, or not hire, someone because he/she is a Young Democrat, member of Oasis Baptist Church, or Junior League member.  Information about membership in professional organizations is an appropriate qualification for employment.  It is appropriate to give preference to a legal applicant who has been active in the local bar association, or to a probation officer who serves on a group dedicated to prevention of domestic violence.

Another forbidden zone of inquiry is a person’s health history or physical disability, even when the disability is evident.  The only legal way to take disability into account is to explain the requirements of the job and then ask if the applicant can perform those requirements, with or without accommodation.  If there is some question about the ability to perform actual job requirements, you may ask how the person intends to perform these specific duties.  Absenteeism at a prior job due to illness may not be discussed and you should ask furnished references about an applicant’s illnesses or absenteeism.  You may ask if there was a problem with time abuse, such as tardiness, patterns of taking time off in conjunction with weekends, or wasting time at work.

Without fear of liability, you may ask the applicant, if hired, how long he/she intends to work on the job.  You may want to ask about future goals of the employee, because if your job won’t aid the employee in reaching those goals, you may not want to hire the person. Indiana is an at-will employment state and either employer or employee may terminate the employment if it turns out to be a bad fit.

Because there are so many questions that may be used against you as evidence of discrimination, it is always best to write your primary questions out in advance and ask the same questions to each applicant.  To get a good feel for the applicant, you should ask questions, rather than supply information about the job to the applicant.  For example, don’t attempt to describe for the applicant your office atmosphere, but rather ask an applicant to describe an ideal work environment.

The good news about the limits on questions to potential employees is that these types of questions are forbidden because they don’t get you what you want: a productive, energetic employee with good character who fits into your office atmosphere.  Taking time to craft the right interview questions will not only protect you from discrimination lawsuits, but also help you to find the best employee.

Trial Courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or email her at brodehef@courts.state.in.us.

“This is an immensely important day, a day that belongs to all of you. Everywhere I look, I see people who have dedicated themselves to making sure that this day would come to pass: my friends from Congress. . . . and perhaps most of all, everyone out there and others—across the breadth of this nation are 43 million Americans with disabilities.  You have made this happen.  All of you have made this happen. . .”

President Bush’s reference to “43 million Americans with disabilities” was based on a number included in the legislative history of the act. The United States Supreme Court considered this statistic and it weighed large in their decisions in Sutton v. United Air Lines, Inc., and Toyota Motor Manufacturing, Ky., Inc. v. Williams.  The Court considered how to establish parameters on the severity of a disability when reviewing the legislation that established a pool of 43 million protected Americans with disabilities.  If the Court defined disability too narrowly, the Act would apply to fewer than 43 million Americans; but if the definition was too broad, it could mean many times more than that number.

In the Sutton decision, the Supreme Court held the ADA did not apply to impairments that only limited the employee from holding a narrow class of jobs.  Unless the impairment precluded the employee, without accommodation, from holding a wide variety of occupations, the impairment did not substantially limit a major life activity, and therefore the employee was not a qualified individual with a disability.  The impairment of the worker in the Sutton case was 20/200 vision that could be corrected with glasses.  Lower courts later interpreting the decision found almost all impairments failed to rise to the level of a substantial limitation of a major life activity.

The Toyota decision was an affirmation of the Sutton reasoning and further held that for an employee to be substantially limited in performing manual tasks, that person must have an impairment that is “….of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.”  Following these decisions, courts granted summary judgments in over ninety percent of all cases brought under the ADA.  Many then argued that the courts had created a “catch 22” in which employers can fire individuals for having a disability; yet, the employee’s condition does not meet the ADA definition of disability so that there is no ADA violation.

It was truly a rare case when a plaintiff could prove that he or she had a disability that met these threshold tests:

• is permanent or long term,
• is of central importance of most people’s daily lives,
• limits employment in a broad range of occupations, and
• the job at issue can be done with a reasonable accommodation which was denied by the employer.

Bombarded with complaints that the courts had stripped the ADA of its protections, Congress made changes to the ADA, effective January 1, 2009, including the following amendments:

• a legislative direction that the Supreme Court’s definition of “substantially limits” is inappropriately high;
• a statement of legislative intent that extensive analysis should not be required to determine if a person is disabled under the ADA; and
• a mandate for the EEOC to broaden the definition of disability in conformance with the intent of Congress.

Congress did not change the definition of disabled. But, it added the definition of “major life activity” that includes: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  Congress also added a definition of “major bodily functions” by adding functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Congress also added by amendment a mandate that an impairment that limits one major life activity does not need to limit other major life activities to be considered a disability under the Act.  A disability that lasts six months is sufficiently permanent to now be under the umbrella of the ADA.  Further, a determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses. To understand the importance of this, the most common restriction on physical activity of an employee has been lifting restrictions; e.g. “no more than 30 pounds.”  The Seventh Circuit has consistently ruled against plaintiffs claiming disability who were restricted from lifting twenty pounds and more as not meeting the ADA definition of disability.  Now, by definition, “lifting” is a major life activity.

What does this mean for an employer?  In the last five years, an attorney analyzing a possible ADA violation typically went through a circular line of questions and routinely determined that the condition was not covered by the ADA.  Now, however, that attorney will be reluctant to recommend that an employer deny accommodation on the basis that the person fails to meet the definition of disabled under the ADA.

Government employers will be particularly at risk because by law cost is never a factor for government employers in determining reasonableness of accommodation.

We anticipate a substantial amount of litigation following these ADA amendments.  All employers should take certain steps to avoid involvement in a test case:

1. update your job descriptions;
2. make sure the skills, training, licenses, and experience needed to “qualify” for the job are listed;
3. specifically state in each job description the “essential functions” of the job;
4. don’t assume an impaired individual or employee is unable to do the job;
5. require objective evidence or a medical opinion in determining disability;
6. give careful consideration to all requests for reasonable accommodation; and,
7. before you deny a request, seek counsel.

Please feel free to give me a call to go over the facts and discuss your situation.

Trial courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or email her at brodehef@courts.state.in.us.