Rural Water - Quarter 4, 2008 - (Page 39)

for example, classiﬁcation speciﬁcations, salaries, working hours and conditions, performance reviews, leave, disciplinary proceedings and appeal procedures. No personnel policy can answer all questions that may come up during the course of operating water or wastewater utilities. Employees should always be expected to exercise the utmost judgment and discretion in the performance of their duties. It’s not an employment contract It is important to understand that a policy manual does not create an employment contract or a guarantee of employment for any speciﬁc duration between the city or RWD and its employees. While the goal should be that an employment relationship with the city or RWD will be long-term, sometimes things do not always work out and either the employee or city or RWD may decide to terminate the employment relationship. Kansas is an “employment-at-will state.” Responding to a Clariﬁer question regarding employee handbooks, Abilene City Manager Allen Dinkel had this to say; “During my 20 years in government I’ve needed to discipline and terminate several employees. I would stress that it is essential to have a good handbook – a road map of what will happen in one of these tense work situations. Because of the serious life implications for the employee, a handbook with precise procedures actually helps him or her through a tough process and is something an employer owes any employee no matter what the work infractions. Good policy and procedure protects both employee and employer! “I also think a good handbook helps employers stand and defend their organization. In my recent experience, an employee chose to litigate a grievance through the Kansas court system and then appealed to the 10th Federal Circuit Court of Appeals in Denver. We won a summary judgment in the case in no small part due to having a good set of rules to follow. In this case, our legal counsel provided the guidance but it was based on a good set of basic policies. If a city or RWD gets challenged and has that road map it is a whole lot easier to battle through such a process!” In Kansas, employment law is grounded in the doctrine of employment-at-will. In the absence of an express or implied contract of duration or where recognized public policy concerns are raised, employment may be terminated at the will of either the employer or employee. About Kansas’ ‘at-will’ rule Dinkel also had this caution; “Remember, Kansas courts have adopted the ‘implied contract exception’ to the at-will employment rule. This means a promise to ﬁ re only for good reason can be implied into the contract of employment based on statements in the employer’s policies or employee handbooks.” An implied contract for employment cannot be disregarded at the employer’s whim, but the employer can help prevent the contract from being created by including a disclaimer stating that its policies and guidelines do not create contractual rights and by carefully writing the policies included in the handbook. Placing policies in writing should not be a binding contract – especially if the policies are written as guidelines that detail generally what the city or RWD’s requirements are and how the employee normally can expect to be treated. This is not ironclad because a contract may be implied by the use of language that communicates rigid rules that have to be followed exactly as written in every circumstance. To avoid the rigidity, build ﬂexibility into the city or RWD’s policy wording and avoid promises that could be misconstrued as a contract. For example, policies should not: • Describe any employee or employees as ‘permanent’; • Make the statement that employees will be terminated only for ‘cause’; • Make or imply promises of job security; or • Make use of inclusive lists, such as in disciplinary procedures or work rules. The policy writer should instead use the terms ‘generally,’ ‘typically,’ ‘usually, and ‘may’ so administrators can have No personnel policy can answer all questions that may come up during the course of operating water or wastewater utilities. Employees should always be expected to exercise the utmost judgment and discretion in the performance of their duties. ﬂexibility in the interpretation and application of policy. Additionally management personnel should be sure to retain the city or RWD’s right to unilaterally change, update and implement all policies as needed. The ﬁ nal inclusion of the policy manual should be a robust ‘at-will’ statement and disclaimer. The following sample disclaimer should be clear and unambiguous in the way it is written and included as policy in the handbook in order to be effective: “Rural Water District No , County, Kansas hereafter called “The District” is an “at-will employer.” Nothing in this manual or other material distributed by any representative of the District is to be interpreted as a contract of employment. Employees may be terminated at any time for any legal reason. Employees may resign employment at any time.” If a city or RWD does these things, no employee could reasonably expect that the policies and guidelines provided a contractual right to job security or any other beneﬁt described in an employee handbook. Reprinted with the permission of the Kansas Rural Water Association. Fourth Quarter 2008 • 39

Table of Contents Feed for the Digital Edition of Rural Water - Quarter 4, 2008

Rural Water - Quarter 4, 2008 Contents From the President Rural Water: Where are We Headed? The Future of Water in America Bank Collateral Controls in Nervous Times Bottle of Water or Billion Dollar Bully? Aqua Chocolate No Mas Why Even Small Water Systems Should Have Personnel Policy Manuals Safe Drinking Water Regulatory Update 2008 NRWA Industry Event Throwing My Loop Advertisers.com Index to Advertisers From the CEO

Rural Water - Quarter 4, 2008

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