In a post last week, we covered some of the implications of allowing an employee to resign rather than be terminated. House File 291, signed into law earlier this year by Governor Branstad greatly impacts public employers and has implications for terminations and resignations.
As covered previously, employees sometimes request that information regarding their resignation be kept secret. Unless reporting is required by law for misconduct, this is normally not an issue for private employers. Public employers, on the other hand, have a significantly greater problem in terms of privacy, particularly given the changes created by HF291 to Iowa Code Chapter 22, regarding open records.
HF291 was passed in the 2017 legislative session and related primarily to public employee collective bargaining issues. These collective bargaining issues have gained a lot of press and subsequent discussion regarding how public employers will manage the contract and union process. However, other changes were also made through HF291 including changes to the Open Records Law.
New requirements were placed on public employers during terminations and certain disciplinary actions. Over the last several years, significant concerns have been raised regarding private severance agreements for employees and employment litigation settlement agreements. In prior years, the legislature addressed the issue by requiring that certain forms of settlement agreements in public employment cases be provided and available as public records This year, under HF291, the legislature went further, amending Chapter 22, relating to open records, to state that documents relating to discharge, resignation in lieu of termination, and demotion are now public records.
The employer may also be required to provide “the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion.” Therefore, an employee deciding to resign as part of a termination agreement can no longer protect the records from public disclosure. Demotions are also open to public record requests, including supporting documentation relating to such items.
Public employers must now also provide direct notice to employees that documentation of this type is subject to public disclosure. Notice may be relatively simple such as a statement that, “This documentation is subject to release under Iowa’s Open Records Law.”
Public employers completing termination or demotion documentation need to be very careful in assessing how documentation is made given the nature of open records requests. A variety of public employers may have items in any investigation which would otherwise be treated as private. Educators, might have educational information regarding students which is protected under FERPA in their documentation, staff at public health programs and facilities might have healthcare information relating to various patients implicating HIPAA and HITECH as well as information which would otherwise be limited under Iowa identity theft laws. Public employers must take care to redact any protected information when responding to a records request.
As with public employers, private employers can negotiate with employees to accept a resignation instead of an involuntary termination, but the employee should know that their records, including the original intention to terminate, are open to the public.
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