XII. Personnel and records

Coverage

Townships often do not think of themselves as employers needing personnel policies. Most have but one employee, an operator, and work arrangements are often informal. Records of hours worked are usually kept by the sole employee.

Even with only a single employee, the township is an employer. It must have an employer identification number, withhold income and Social Security taxes from wages, and pay state unemployment insurance. While the board members can probably be handled with a 1099 tax form, the trustee will need withholdings as well.

Townships are considered a public employer and must keep certain records under the federal Fair Labor Standards Act (FLSA). Employees, even if they number only one, must have a workweek on record. For the employer to implement the use of compensatory time, the employee must have agreed to accept comp time off in lieu of overtime pay, or the use of comp time must have been a condition of employment when they were hired. If hours worked during the workweek exceed 40, wages must be paid at time and one-half either in comp time or cash. Most public employers use comp time instead of cash.

Hourly wage equivalent

Regardless of how they are paid, all employees must have an hourly equivalent wage on record. This is the figure used for calculating overtime rates. If the employee is paid on an other-than-hourly basis, this equivalent is calculated by dividing hours worked per year into annual earnings.

Comp time and overtime

No more than 240 hours of comp time may be accumulated. This represents 160 hours of overtime work. Should an employee hit that mark, additional overtime must be paid in cash at a rate of time and one-half.

When an employee dies, quits, retires, is fired or is laid off, all comp time on the books is due and payable in cash. The rate is either the final rate of pay or the highest rate of pay in the final three years, whichever is higher. Thus, accrued compensatory time is a township liability, and someone should have a record of it besides the worker.

Once comp time is earned, it is the property of the employee. Within the bounds of reasonableness, it may be taken when the employee desires. However, a Supreme Court ruling allows employers to limit comp time budget liability by setting time limits within which comp time must be used. Christensen v. Harris County, 529 U.S. 576 (2000).

An employee does not have the right to decline to earn overtime. It is worth remembering that the original intent of Fair Labor Standards Act in 1937 was not to benefit workers, but to employ more people when over a fourth of the workforce was unemployed. The idea of replacing the 60-hour week with the 40-hour week was to provide more jobs.

Employee benefits

Townships must follow rules of the FLSA, which only covers hours worked. The FLSA does not concern common employee benefits, such as holiday pay, sick leave, vacations or differential pay for nights or Sundays.

If the township chooses to offer any of these benefits, that is a township decision.

On-call time

Township operators are often on call, especially in winter. Generally, rulings under FLSA have hinged decisions on whether on-call time must be paid based on show-up time allowed. If an on-call worker is required to arrive in 10 minutes or less, on-call time is hours worked. If a called-in worker has more than 10 minutes to arrive, on-call time does not count as hours worked, most rulings suggest.

Volunteer work

Generally, an employee cannot volunteer for the same work for which he or she is paid. While the township's operator could volunteer to do machine work for a city or a county, volunteering for the township would be hours worked and would have to be paid.

Penalties

If a complaint is made, the U.S. Department of Labor investigates. They usually find violations of some sort, nearly always in recordkeeping. The agency can assess penalties that go back two years from the date the complaint was filed, or three years if the employer was purposely trying to dodge the law. Penalties can be doubled. This is a risk not worth taking. Compensate overtime and keep overtime records.