Ask Rita in HRPhotos of Ellen and Pamela, writers for this columnRita in HR is actually two HR attorneys in one: Ellen Aldridge and Pamela Fyfe, both of the Nonprofits Insurance Alliance Group. They advise nonprofits on wrongful termination, wage & hour, discrimination, harassment, and other employment issues—before they are sued—to help keep them out of court.

Mental Health Counselor May Have a Mental Health Problem -- What Can We Do?

Dear Rita: Ruth has worked for our nonprofit for about three years as a Mental Health Counselor. Until recently she has been an excellent employee. However, starting about two months ago, Ruth’s behavior has gone into a problem-filled free fall. Her supervisor reports that she has stopped talking to other employees, refuses to attend mandatory meetings, and walks off the job without notice exploding in anger. Several clients have requested a change to another therapist, complaining that Ruth seems unfocused and just plain weird during their sessions. As the Human Resources Director of a large nonprofit, I am at a loss for what to do, but I am beginning to feel that Ruth is "nuts." Signed, Frustrated in HR

Dear Frustrated: It sounds like you should explore whether Ruth could be suffering from a mental health disability; and I strongly caution you to never . . .

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Ask Rita: Do We Need Insurance for Our Volunteers?

Dear Rita: I recently read an article that said it was a good idea to have insurance for volunteers. I thought volunteers had immunity in both federal and state laws. Should I be doing something to protect my nonprofit? Signed, Curious in California

Dear Curious: Volunteer immunity laws are common, but they almost always contain a provision that the volunteer's immunity only applies to claims that exceed the insurance policy limits carried by the nonprofit. That means both the nonprofit and/or its volunteers need to have coverage available . . .

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How to Deal with an Office Bully

Dear Rita: I have a really awful co-worker -- Gossip Greta -- who is making me miserable. She goes out of her way to be rude to me and badmouths me behind my back. Once I made a minor mistake and she started yelling at me, calling me "stupid" and "incompetent" right in the middle of the office! I’ve complained about her, but my boss says, "Oh, that's just how she is." She even spread a rumor that I’m cheating on my girlfriend. I never did anything to her and I don’t know why she’s being so awful to me. Can I sue my employer for creating a hostile work environment? Or should I just quit? Signed, Fed Up

Dear Fed Up: Greta is more than a gossip. She sounds like a bully.

Bullying involves repeated instances of unreasonable mistreatment. I think of bullying as an aggravated case of rudeness. Such behavior might include the bully making the target the repeated butt of "jokes."At its worst, bullying behavior may be physical and interfere directly with the target’s work.

Although bullying behavior may be used as evidence of discrimination, it is not . . .

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Ask Rita in HR: Do we really have to do performance evaluations?

Dear Rita:  I just started as the first HR Manager for an environmental nonprofit that has grown to 65 employees, although at least 35 of them are summer staff. I was somewhat shocked to discover that there are no performance evaluations in the files! When I asked the ED about this, she said two things: a) seasonal employees don't need to get evaluations, and b) that regular employees work mostly in teams and that they've worked together for a long time. When I recommended a formal performance evaluation process the ED said she would only do it if legally required. So my question: are performance reviews legally required? Signed, New Kid on the Block.

Dear New Kid: First, there is no law that mandates . . .

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What Are My Nonprofit's Obligations Under the Affordable Healthcare Act?

Dear Rita: I am the executive director of a nonprofit with 15 employees. We have never been able to afford to provide health insurance benefits for our staff. I'm confused about our obligations under the Affordable Healthcare Act. I heard that employers have to pay a "penalty" if they do not provide healthcare to their employees, but frankly I don’t think we can afford it. Signed, Sick with Worry

Dear Sick with Worry: The Patient Protection and Affordable Care Act (ACA, Obamacare, or the "Act") has several provisions designed to help small businesses afford healthcare coverage for their employees. The Act does not mandate or require all companies to provide insurance, but . . .

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Hiring Job Candidates with Criminal Convictions: Unlock the Possibilities

Like many employers, you may follow a default position of not hiring job seekers who have a past criminal conviction, but such a one-size-fits-all policy can not only get you in trouble with the law, it could also eliminate some excellent candidates from your hiring pool. In this article, labor attorney Siobhan Kelley of the Nonprofits Insurance Alliance Group tells you what you need to create a more nuanced and fair hiring policy regarding criminal background checks and convictions.

Dear Ask Rita,

We have a great candidate for an open position in our nonprofit, but when we did a background check we found out she was convicted of a felony four years ago. We try to be fair by running background checks on every candidate who gets a job offer, and our policy is that no one who has been convicted of a felony can be hired. We would like to make an exception and hire this candidate, but do we then have to make exceptions for other candidates who don't pass the background check? Signed, Law and Order

Dear Law and Order:

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Is Coming to Work Required to Keep My Job?

Dear Rita in HR:

I have one employee who has not come to work for more than a year due to a disability of back pain. But our HR director says I can't terminate him because he is protected by the Americans with Disabilities Act (ADA). As a result, I can't hire anyone into the job permanently since at any moment I would have to give the job back to this person who's been gone for a year. Is our HR director right that we can't terminate this absent staffperson?

Dear Frustrated,

I sympathize with your frustration! You are not alone in being confused and aggravated. Basically, the ADA prohibits discrimination against "qualified individuals": disabled employees who can perform the essential functions of the job with (or without) reasonable accommodation)

The legal question is whether an employee who is unable to come to work can still be qualified to perform . . .

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The A to Zzzzz of Paying for Sleep Time

Dear Rita: We operate two group homes for youth. At one we have live-in house parents, and at the other one, staff is scheduled for 24/7 coverage, but no one lives there. In both cases, though, employees spend a lot of time not working: watching TV with the kids, sleeping, or on a personal phone call. Do we have to pay them for all the time they are at the group home? Even the time they're asleep? Signed, Pay to Play

Dear Pay: We can't help but wonder: if you dream about your job can you count that as time worked? And if it's a bad dream, can you get extra hazard duty pay? Sorry . . . HR attorneys are not supposed to have a sense of humor.

First, the rules are different for live-in employees than for others. But for both situations, your question gets to the heart of the definition of "hours worked" under the federal Fair Labor Standards Act (FLSA) and the many similar state laws that govern minimum wages and overtime.

For employees who do not live in the facility

If an employee does not live in the facility, the federal regulations define “hours worked” as . . .

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Firing Someone for Slamming Their Nonprofit Employer on Social Media: Legal Update

Dear Rita: I liked your article a couple of years ago about whether employees could be fired for what they posted on their Facebook page. Since then I keep reading about how a federal law, called the NLRA, is being used to regulate what action an employer can take when an employee posts negative comments about the employer on a private Facebook page. Can you explain what this is about? Signed, Wondering

Dear Wondering: You are truly keeping up-to-date on the most recent Facebook decisions and I will be happy to fill you in. And towards the end of this article we've included language for a personnel policy on social media.

Background

NLRA, which stands for "National Labor Relations Act," is the federal law that regulates union activity. However, a small section of the act applies to all employers, even those who are not unionized. The act also only applies to employees that could unionize, so it does not apply to management. Section 7 of the NLRA grants employees the right to engage in "protected concerted activity" which is generally defined as two or more employees working together to improve the terms and conditions of employment. 

In light of what are commonly referred to as "Section 7 rights," employers cannot prohibit employees from . . .

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HR Book for Non-HR People incl EDs, Supervisors, Boards

While there are many books written on HR, almost none focus on nonprofits or address the unique issues and cultures in community nonprofits (for instance, the fact that in most organizations there isn't enough budget for a full-time, credentialed HR director).

My newest book, The Nonprofit’s Guide to Human Resources: Managing Your Employees & Volunteers, could have been titled "Everything You Need to Know About HR in Nonprofits." It's truly focused on HR from a nonprofit perspective, and it's written for everybody but the full-time HR professional.

HR really is different in nonprofits, and here are some of the ways:

So many people -- from "Accidental HR Managers" to executive directors to employment lawyers to HR directors in organizations large and small -- have contributed to this book. Even though I wrote it, I have to admit I am encouraging people to buy and read this book. For one thing, both of the HR attorneys who write Blue Avocado's "Ask Rita" column are advisers! It's available from the publisher, the well-known legal-oriented Nolo Press (www.nolo.com) here or Amazon (www.amazon.com) here. Thanks!

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