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A1: Turnover is the loss of talent/employees (through resignations, retirements, layoffs and terminations) in the city workforce over time. While employee turnover is not always a bad thing, the number of staff leaving and the reasons behind the departure are important to consider. There may be a multitude of ways to reduce unwanted employee turnover, including hiring the right people, ensuring the city is offering a competitive total compensation package, and prioritizing work-life balance. Some employers in this tight labor market are seeking ways to retain their superstar employees through various approaches like offering flexible work options/remote work policies, implementing employee recognition actions like “Thank-You Thursdays,” and offering career development and training opportunities like Spanish language outreach. Still others are considering incentives to encourage employees to provide the city with more notice for upcoming retirements to help with transitioning new workers on board (see Lakeville’s Advance Resignation Notice Program).
HR Reference Manual – Chapter 2 Hiring
HR Reference Manual – Chapter 4 Compensation
HR Reference Manual – Chapter 5 Benefits
City Career Advantage
Classification and Compensation Plan Framework for Smaller Cities, LMC Model (docx)
Q2: The labor market is really tight, so we have been considering hiring a remote worker from another state. Which state law applies when an employee works in another state than Minnesota?
A2: Although there can be differences based on the state, most employment-based laws (such as wage-and-hour, fair-employment, workers compensation, unemployment and the like) are applied according to the state in which an individual works. Thus, the answer depends not only on the type of employment issue (e.g., payroll taxes, leave eligibility, etc.), but also on the state, or even the city, in question. Be sure to review State Employment Law Considerations for Remote and Related Workers. Cities should be aware that state laws often do not define a relevant “threshold” for determining whether a city is required to comply with that law as it pertains to a particular employee. Of course, that does not necessarily mean the law does not apply, or that it would not be determined by the relevant authority to apply, and no hard rule exists for making such determinations. In those instances, the conservative advice may be to err on the side of caution and comply with whichever state’s law is more beneficial to the employee.
A3: Ideally, all employees’ performance will be measured through a performance review on a regular basis. If an employee is not performing as expected, cities will want to follow the city policies and procedures that the city has laid out for corrective action. Most employers find “letting an employee’s performance issue slide” for one employee and not another, is problematic. It hurts workplace performance and could mean that the city is at risk of potential liability. Some key considerations outlined in the Discipline and Termination Chapter of the HR Reference Manual include determining whether there is an employee capability issue (lack of knowledge, lack of understanding), motivation (not feeling appreciated), or something else going on.
When taking an adverse employment action against an employee, an employer is required to have a legitimate, non-discriminatory, and non-retaliatory reason for doing so. We also strongly recommend a city partners with their city attorney to work through the process to ensure no important steps are missed. The employer must also consider severity and related impacts, frequency, the duration of the employee’s employment and all other extenuating circumstances. It’s really important to document the steps the city has taken with the employee, including written communication to the employee explaining expectations. This type of documentation helps strengthen city communication by establishing that an incident or event occurred, outlining what actions the city took, and helping demonstrate the city’s diligence in establishing and enforcing workplace performance standards.
A4: Personnel policies are written rules and guidelines necessary to keep the city functioning smoothly from a human resources perspective. Personnel policies help implement a consistent approach to management. They are the formal rules and guidelines the city puts in place to hire, train, assess, and reward employees. They serve as a guide for managers to provide a framework for uniform and consistent administration. When managers and supervisors use well-written policies to guide them in their personnel management decisions, they are much more likely to treat everyone in a fair and just manner. Finally, personnel policies are proof the city took some time to consider potential issues and to establish written rules and guidelines as employment conditions for city employees. Keep in mind, you don’t have to re-invent the wheel in creating a set of personnel policies; the League has a model policy you can use for your next set of updates: Personnel Policy Template, LMC Model Policy (docx).
Q5: It’s been a while since we have looked at our employment applications. What should we be checking for?
A5: While an employment application can be a helpful tool to learn about an applicant’s education and work experience, it’s vital a city asks the right questions lawfully at the appropriate time. Make sure your city employment application isn’t asking for an applicant’s protected class information such as maiden name, social security number, date of birth, arrest or conviction information.
State law prohibits public employers in Minnesota from asking for information related to convictions on the employment application form, unless the background check is required by state or federal law. Additionally, across the United States, state and local governments are increasingly adopting laws prohibiting employers from requesting salary history information from applicants. While currently Minnesota does not have a salary history ban, in order to promote equity efforts, the League has eliminated asking for salary information from our model employment application. Keep in mind, you don’t have to re-invent the wheel when you update your city employment application; the League has a model you can use: Employment Application, LMC Model Form (docx).
Q6: What can I legally ask in an interview?
A6: Cities will want to avoid asking applicants any personal questions that are not related to the job (e.g., family/children, daycare arrangements, marital status, disabilities, ethnic background, sexual orientation, and religion). Asking questions about these protected class areas can result in charges of discrimination, an investigation by the U.S. Equal Employment Opportunity Commission (EEOC), and potentially a lawsuit if the issue cannot be resolved. You can review the League’s Pre-Employment Inquiry Guide (pdf) for examples.
A7: Not necessarily; as in most situations, there is no state or federal law specifically requiring a city to advertise a job opening. However, there are several reasons cities may decide on their own to advertise or post all vacancies. Also, there are some limited situations in which there may be a legal obligation for the city to post a vacancy. Cities sometimes establish a policy of publicly advertising or posting all of their job openings in conjunction with their equal employment opportunity or affirmative action policy. For example, to recruit a diverse workforce, the city specifies all positions will be advertised publicly in both general audience newspapers as well as publications that serve specific cultural, social, or ethnic audiences. In addition to aiding with diversity and inclusion efforts, this type of policy will often help defend the city in a lawsuit or discrimination complaint over a hiring decision. A city may also choose to publicly advertise all job openings simply to make sure it takes the opportunity to review the qualifications of all available candidates. For additional information on job postings, please refer to Section IV, D in the HR Reference Manual – Chapter 5 Hiring. To post your city job ad on the LMC website, visit the Careers page.
A8: We’ve got a MemberLearn online learning course for that! This free course for LMC members is specifically designed for small cities and will give you an overview of the types of seasonal employment characteristics, requirements for employing minors, and recruitment tips for seasonal hiring. Access the MemberLearn course “Tips for Seasonal Hiring”
Q9. We plan to hire a city worker soon. How do I determine if the person should be classified as an employee or an independent contractor?
A9: The League provides an overview memo labeled “Employee or Independent Contractor” and this can be a great tool for a discussion with your City Attorney about how best to classify your new city worker. It’s important to note there have been significant changes to the federal Department of Labor’s guidance on the classification of workers since 2020. Most recently, the federal Department of Labor announced they have plans to engage in rulemaking regarding determining employee or independent contractor status under the Fair Labor Standards Act (FLSA), so additional law changes may be forth coming.
With the anticipated proposed rule changes, what is a city to do now? Again, please review the linked memo with your city attorney for legal guidance specific to your city. Generally speaking, many employers conservatively default to considering most workers employees in order to inadvertently avoid running afoul of important employment laws with far reaching financial ramifications for the city such as Fair Labor Standards Act obligations (minimum age and overtime just to name a few), workers compensation liability, unemployment insurance law, pension and insurance benefits and others.
The MN department of Revenue provides this guidance which may also be helpful:
- A worker is your employee if you have the right to control the details of how the worker performs services (what will be done and how it will be done), even when you give the employee freedom of action.
- A worker is an independent contractor if you have the right to control or direct only the result of the work and not how to work is performed. Independent contractors pay self-employment tax on their earnings.”