“Do” Take the Smooth Road to Hiring By Jerry L. Pigsley and Kelly M. Ekeler, Harding & Shultz, P.C., L.L.O. The hiring process can be a bumpy road. Municipal officials can avoid a few bumps along the way by following these Do’s and Don’ts: Don’t Rely on Inaccurate Job Descriptions to Determine Exempt Status. When determining whether an employee is exempt from overtime pay requirements under the Fair Labor Standards Act (“FLSA”), a municipality must base its determination on “the duties actually performed by the employee.” 5 C.F.R. § 551.202(e). A recent court decision provides an example of an employer that mistakenly relied on inaccurate job descriptions to determine exempt status. See Madden v. Lumber One Home Ctr., Inc., 745 F.3d 899 (8th Cir. 2014). In Madden, the employer classified three employees as executives under one of the FLSA exemptions. The employer based its determination on the job descriptions for the three positions which included involvement in the hiring and firing process. In reality, however, two of these employees were not consulted and did not have their suggestions considered as part of any hiring or firing process. The court upheld an award of back pay to the two employees for overtime pay and also ordered the employer to pay the employees’ attorney’s fees.
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Don’t Refuse to Rehire Former Qualified Employee who Exhausted Protected Leave. Municipalities must be cautious when hiring from a pool of applicants that includes a former employee. A recent court opinion held that a city was liable for failing to rehire a former employee who had previously terminated employment with the city after exhausting leave under the Family Medical Leave Act (“FMLA”). See Jackson v. City of Hot Springs, Nos. 13-1772, 13-1875 (8th Cir. March 12, 2014). Jackson had worked for the city beginning in August 2001. In 2010, he took FMLA leave after having pancreas and gallbladder surgeries, but was unable to return to work upon exhaustion of leave and was terminated. One month after Jackson was terminated, his doctor cleared him for work and he re-applied to his former position. Jackson was selected for interviews and his former supervisor recommended him for rehire. Jackson was not rehired and the position was left vacant until the job was reposted in January 2011. Jackson again applied but was not hired. The court held that Jackson’s qualification for the position and the city’s inadequate explanation for not rehiring Jackson were sufficient evidence to find the city unlawfully retaliated against Jackson for exhausting FMLA leave.
SOUTH DAKOTA MUNICIPALITIES
