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Rita 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.Zero Cell Phone Use While Driving Policy
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PrintYour employer should enact a "Zero Cell Phone Use While Driving" policy. Such a policy should consider the following elements:
1. Require that employees pull over at the next available safe stop to return a work call.
2. Never initiate a call while the car is moving.
3. Never look up a number or dial information while driving.
4. Ban text messaging while driving.
Such a policy should state that any employee who, on work time, talks on a cell phone while driving will be subject to discipline, regardless of whether the employee has an accident.
If you employer feels that it must maintain instant connectivity with its employees, it could provide all employees with a "hands-free" cell phone device to facilitate safe driving. But the hands-free solution may only slightly diminish the risk of an accident while driving, since focusing on the conversation, especially a stressful one, diverts attention away from driving onto the subject at hand. So if hands-free phones are furnished, in addition to items 2, 3, and 4, the policy should consider:
5. Never use the cell phone in bad weather or heavy traffic.
6. Always keep your eyes on the road, and drop the call if you need to focus on your driving.
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A Family and Medical Leave Act Checklist
Use this quick Checklist as a way of making sure you've remembered all the key points:
1. The employer is responsible for designating an employee's leave as qualifying under the Family Medical Leave Act (FMLA).
2. An employee giving notice of the need for FMLA leave must explain the reasons for the leave to allow the employer to determine that the leave qualifies under the Act.
3. Where the employer is not able to confirm that the leave qualifies under FMLA, or has requested medical certification of a serious medical condition, the employer may make a preliminary designation, and so notify the employee. The employer's request for medical certification must be in writing and state the consequences if it is not received within 15 days from the request.
4. For intermittent leave, the doctor’s certification must specify that there is medical necessity for intermittent leave.
5. The employer must give only one notice of the designation to the employee, unless the circumstances regarding the leave have changed.
6. The notice may be oral or in writing. If the notice is oral, it must be confirmed in writing no later than the following payday which is more than one week after the oral notice.
7. The written notice may be in any form, including a notation on the employee's pay stub.
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Can an Employee Come and Go Using Family or Medical Leave?
Dear Rita,
One of our exempt employees -- a children’s therapist -- is 
keeping me up
nights by taking unscheduled and intermittent leave under the Family Medical Leave Act (FMLA).
We’ve been able to plan schedules when other employees have requested
either a 3-month leave or regularly scheduled intermittent leave, but
this employee has rheumatoid arthritis and she never knows until she
wakes up if she will be able to come to work on any particular day. We
can't count on her to keep appointments with our clients. We know that
leave under the FMLA is protected, but there must be something we can
do without these continuous disruptions to our services. Help!
-- Sleepless
Dear Sleepless: The administration of intermittent leave can create a headache for the employer. You do have some options -- and some tools -- that can help you
> Read moreAsk Rita: Facing an Immigration Quandary
Dear Rita: Our organization recently got letters from the
Social Security Administration (SSA) informing us that two of our
employees’ social security numbers do not match with the social security database.
We want to keep these employees; what should we do and what are the risks? - Baffled
Boss
Dear Baffled:
Immigration law enforcement is not only a hot political issue; employers of all kinds are also feeling the heat. An employer that does not comply with the Immigration Reform and Control Act (IRCA) by verifying that an individual is eligible to work in the U.S. can be subject to fines of $110 to $1,100 per employee and criminal sanctions in egregious situations. Just because you've received this letter doesn't mean
Click on "Read More" to see Rita's full answer along with a Three-Step Immigration Compliance Checklist
> Read moreThree-Step Immigration (IRCA) Compliance for Employers
The best protection for employers seeking to comply with the law is to keep accurate paperwork demonstrating your good faith efforts to comply with these complex and confusing immigration laws.
Three steps that will help:
1. Keep complete Form I-9s for all employees hired after November 6, 1986, in one main file, with copies of the documents that the employees provided to verify their eligibility to work. Starting December 26, 2007, employers were required use a newly revised Form I-9. The latest version of Form I-9 and a listing of the documentation required as proof of eligibility to work in the U.S. may be obtained at www.uscis.gov. You can find the revision date of the Form I-9 you have on the lower right corner of the form; the latest version has a revision date of 06/16/08.
2. Consider using the E-Verify system to check the validity of the information provided by your employees. E-Verify is an online social security number/visa confirmation system that is offered by the Social Security Administration (SSA) and the Department of Homeland Security. Be advised, though, that E-Verify has both risks and benefits. Use of E-Verify provides a defense against an Immigration and Customs Enforcement accusation that the employer had "constructive knowledge" of an employee's false documentation. However, it could also be used to prove that an employer notified by E-Verify that the employee's documention is questionable knowingly violated the law unless the employer takes action to get accurate documentation or terminate the employee. While E-Verify is mandatory for government contractors and for employers in some states, it still is voluntary for all other employers. Sign up at www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm.
3. In the event that your organization receives a no-match letter or a notice of suspect documents from the SSA, follow the safe harbor procedures outlined in this article.
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Overtime Pay for Nonprofit Preschool Teacher?
Dear Rita:
I'm a daycare worker for a nonprofit agency. My employer pays me a salary and refuses to pay overtime when I work more than 40 hours a week. The executive director says I'm not entitled to overtime pay because I am a "salaried teacher." I think the real issue is whether I am an exempt employee. I don't supervise other employees and I don't have a college degree or a license. What advice can you give me?
Don't Drive, Chew Gum and Use the Phone at the Same Time
Dear Rita:
As a social worker for a nonprofit, I am required to carry a cell phone with me. Sometimes my supervisor calls me when I am
driving. If I don't answer the call, she might think I'm shopping
instead of working. However, I am concerned about whether I can be a
safe driver while talking on the cellphone. Can I refuse to answer
calls while driving without being reprimanded? -- Not Chatty Cathy
Dear Not Chatty Cathy:
> Read moreA Blogging Policy for the Nonprofit Workplace
Employee blogging, like the use of the internet itself, is only likely to grow. Many employers are taking proactive steps to protect themselves from harmful or embarrassing blogs by adopting an agency blogging policy. The blogging policies of many large technology policies can be found on the internet and you could modify those policies based on the culture and needs of your agency. Such a policy, at a minimum, should contain the following provisions:
- Clarification of whether blogging may be done on agency time or with the use of agency computers.
- Bloggers must comply with all of the agency’s policies and agreements, including any on ethics, code of conduct, confidentiality and discrimination/harassment.
- Bloggers are personally and legally responsible for the contents of their blogs. Blogs are individual, not agency communications, and employees must not represent or imply that they are expressing the opinion of the agency.
- Never disclose any confidential or proprietary information concerning the agency or its customers or clients.
- Act professional towards yourself, your coworkers and your agency. Do not put anything on your blog that will embarrass, insult, demean or damage the reputation of the agency, its services, customers or clients, or any of its employees.
What Should We Do About an Employee's Outrageous Blog?
Dear Rita,
An employee googled our nonprofit's name and came across a coworker's blog. The blog contains some outrageous material, including some unflattering comments about working at our organization. What can our nonprofit do? -- Blog-Burned
Dear Blog-Burned:
> Read moreCan We Require An Employee To Take Her Meds?
Dear Rita,
Our nonprofit provides services to people with mental disabilities. As part of our mission, we employ former clients. Can we require an employee/former client to take her psychiatric medications as a condition of continued employment? --Worried and Wondering
Dear Worried and Wondering,
No, you can't require that. Once a client becomes an employee, your agency must take off its social service provider hat and wear only its employer hat. Your focus must be on employee performance rather than client health and well being. The tool you can use to ensure satisfactory performance is effective supervision.
Whether or not your agency is covered by the Americans with Disabilities Act (ADA, which covers places with 15 or more employees) or similar state laws, I recommend using the "interactive process" as a supervisory tool to address any concerns you have with this employee's ability to perform. The ADA requires covered employers to engage in this interactive process - in-person meetings and ongoing dialogue - with disabled employees to determine if any reasonable accommodations are necessary for the employee to do the essential functions of the job.
If you observed performance or behavior problems, you could use the interactive process to ask the employee for medical certification of any disability, including identification of any limitations she has that may need accommodation in the workplace.
Remember, it is inappropriate to use any of the medical information you had about the employee from her client records because privacy rules mandate confidentiality of clients' mental health treatment records!
If the employee was not forthcoming with medical certification of her disability, the agency could send her for a fitness-for-duty exam to obtain a current opinion about the employee's disability status and work limitations.
Once the interactive process is done, if performance is still deficient or there is a potential health and safety issue, counseling, disciplining or discharging her can be considered if she can't perform the essential functions of her position after implementation of any reasonable accommodations.
(More information on the interactive process and reasonable accommodations can be obtained from the EEOC at http://www.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html)
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