Kingsport Times-News: Mount Carmel personnel policy jeopardizes its at-will employer status

Mount Carmel personnel policy jeopardizes its at-will employer status

Jeff Bobo • Jun 1, 2018 at 12:03 PM

MOUNT CARMEL — The Board of Mayor and Aldermen is in the process of replacing its personnel policy, which apparently increased liability by giving employees rights they aren’t guaranteed in Tennessee as an “at-will” employer state.

In an at-will state, employers can dismiss employees for any reason, or no reason at all, as long as the termination doesn’t violate state law or existing contracts.

Last week the BMA approved the first of two required readings of an ordinance repealing the town’s current personnel policy.

The second reading will be considered for approval at the June 28 meeting, and assuming that is approved, the BMA will be asked to approve the new personnel policy by resolution, which requires only one vote.

New policy was proposed by MTAS

The new policy addresses employee grievances, vacation buyback, and the FMLA (Family Maternity Leave Act) and was recommended by the University of Tennessee’s Municipal Technical Advisory Service (MTAS).

During the May 24 BMA meeting, MTAS human resources consultant John Grubbs noted that under the new policy an employee who is fired has no appeal to the BMA.

“They can go to Chancery Court, but there’s no appeal right once somebody is terminated under at-will,” Grubbs told the BMA. “Under the city manager form of government, the city manager hires and fires and works for the board. The board directs the city manager. But the hiring and firing, the management, and the day to day operations would be performed by the city manager. If the board isn’t happy with the city manager, the board can get rid of the city manager.”

The new policy allows employees to address grievances to the city manager with regard to working conditions, equipment, facilities, safety concerns and other work-related issues. It’s not to appeal disciplinary actions.

Housewright: New policy will reduce town’s liability

“FMLA is a huge liability to a town,” City Manager Mike Housewright told the BMA on May 24. “We don’t meet the threshold by which FMLA gets triggered. Typically any public organization has to have 50 employees. The grievance policy as well. We consider ourselves to be ‘at-will’ (employers). The institution of a due process for employment undermines that.”

Housewright added, “Also within that, probationary period. It’s my recommendation that we strike the six-month probationary period from the personnel policy. The implication of a probationary period seems to indicate that beyond that probationary period there is a job entitlement, or a job right. That undermines our status as an at-will employer.”

Current policy has led to lawsuits

City Attorney John Pevy said he has been after the BMA to change its personnel policy for three years. Pevy said he can think of at least two recent employee lawsuits that would have been addressed by the policy change.

“(The existing policy) created the guise that employees have rights they don’t have, which might lead a court to believe we gave them rights, which could cost the town money,” Pevy told the board.

Pevy added, “A number of the legal issues we’ve had in court of late have sprung from our current grievance procedure. It basically puts our at-will employment status in jeopardy. It creates what could be a very expensive and, quite frankly, messy legal battle on the back end when an employee is terminated. It doesn’t take away the employee’s right to challenge that termination if they think it was unjust, in the court system. ... They’re protected by the laws of the state of Tennessee to determine if it was a just termination.”

Housewright said part of his job is to ensure the delivery of services to Mount Carmel citizens, and to do that his goal is to make the city a good place to work.

“For me to be too heavy-handed or do something unjustly within the workforce will impair our ability to deliver services,” Housewright said. “... I have a responsibility to this board, but also to the employees because my job is to give them the tools that they need, to provide the services, to come and do a good job.”

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