Ask Rita in HR

Ask Rita in HR is actually written by three HR attorneys: Ellen Aldridge, Pamela Fyfe, and Siobhan Kelley. They are at the Nonprofits Insurance Alliance Group, one of the sponsors of American Nonprofits and Blue Avocado. All three of them advise nonprofits on wrongful termination, wage & hour, discrimination, harassment and other employment issues -- before they are sued -- to keep them out of court.

Photos of Ellen, Pamela, and Siobhan who are writers for this column

Ask Rita in HR: How Do I Stay ADA Compliant When an Employee Has a Disability?

Dear Rita in HR: One of our employees recently disclosed a medical condition that limits his ability to perform some of his duties. His manager wanted to fire him because he can no longer perform his job, but I don't think we can do that. I handle accounting and HR for our nonprofit and don't know a lot about employment law, but I do know that employees with disabilities have legal rights. What should our nonprofit do to comply with the law?

Signed, X

Ask Rita: Can I Just Hire Independent Contractors?

Dear Rita in HR: I am executive director of a very small nonprofit. Recently, I had to fire an employee for the first time. In retrospect, I probably made a bad hiring decision, but it was a real nightmare to go through. I would like to just hire independent contractors from now on. As I understand it, with contractors I just pay them a flat amount every month and at the end of the year they get a 1099 instead of a W-2. Sounds like a great solution to me! Are you going to rain on my parade?

Signed,

Found the Magic Wand

Gifts from the Board Chair

Dear Rita in HR: I am the executive director of a smallish non-profit (250K annual budget). My salary is low compared to other executive directors, but I believe in the organization's mission and I have great working conditions. However, the board chair seems to feel badly that the organization cannot afford to pay me more and sometimes gives me large financial gifts from his own pocket. When this first happened I thought it was an isolated incident, but I was just tipped off by a mutual friend that he is planning to give me another large gift soon. I feel extremely uncomfortable about this. He prides himself on being generous and would be very hurt if I refused it. Help!

Dear Help: I agree that it is inappropriate for the Board Chair to give you money...

Sample eWorkplace HR Policy

There Is No Expectation of Privacy When Using Nonprofit E-Ware

A. E-Ware, Authorization and Ownership

E-Ware includes all electronic devices and software communication, provided or
supported by Nonprofit, including, but not limited to personal computers, workstations,
laptop computers and electronic tablets; peripheral equipment such as printers, modems, fax
machines, and copiers; computer software applications such as software that grants access to the
Internet or e-mail; and, telephones, including cellular phones, smart phones and voicemail
systems. Nonprofit will give access to its E-Ware to those employees whose job performance
will benefit from the use of Nonprofit's E-Ware. Nonprofit owns all information created,
received or stored on any electronic device or software communication provided or supported by
Nonprofit.

B. Use of E-Ware

Employees should use Nonprofit's E-Ware for the purpose of conducting Nonprofit
business. Employees may use Nonprofit's E-Ware for incidental personal use so long as
such use does not interfere with the employee's duties, is not done for pecuniary gain, does not
conflict with the Nonprofit's business, is not for any illegal purpose and does not violate any
Nonprofit policy [e.g. "Policy Against Harassment"]. Personal use may include sending and
receiving occasional personal communications and data, using the telephone system for brief
personal calls, and accessing the Internet for brief personal searches and inquiries during meal
times or other breaks, or outside of work hours.

C. No Expectation of Privacy

Employees have no expectation of privacy, with respect to any aspect of their use of
Nonprofit's E-Ware, including but not limited to the Internet or electronic mail,
either while working in the office or remotely, including personal information or messages
created, received or maintained on Nonprofit's E-Ware.. Nonprofit may need to access any
and all information, including computer files, e-mail messages, text messages and voicemail
messages. Nonprofit may, in its sole discretion, inspect all files or messages on its E-Ware at any
time for any reason. Certain of the Nonprofit's E-Ware requires the use of a password. Passwords do not confer any right of privacy upon an employee of Nonprofit.

D. Deleted Information

All employees should understand that any information kept on Nonprofit's E-Ware may be electronically recalled or recreated regardless of whether it may have been "deleted" by an employee. Employees who delete information or messages should not assume that such information or messages are confidential.

E. License Restrictions

All software in use on Nonprofit's Technology Resources is officially licensed software. No employee may load any software on the Nonprofit's computers, by any means of transmission, unless authorized in writing in advance by __________ [specify, e.g., Technology Coordinator, Office Manager, etc.] and thoroughly scanned for viruses.

F. Confidential Information

Nonprofit protects confidential information of both the Nonprofit and its clients. ("Confidential Information"). Therefore, employees are expected to use good judgment when using or transmitting Confidential Information using Nonprofit's E-Ware. Confidential Information should not be accessed through Nonprofit's E-Ware in the presence of unauthorized individuals nor be left visible or unattended on any E-Ware.

THIS POLICY MAY BE MODIFIED ONLY IN WRITING BY XXXX. NO OTHER EMPLOYEE HAS THE AUTHORITY TO MODIFY THIS POLICY EITHER VERBALLY OR IN WRITING.

Note: this sample policy accompanies the Blue Avocado article, "Can We Fire Someone for Something They Said in a Personal Email?" by Pamela Fyfe

Can We Fire Someone for What They Said in Personal Email?

Dear Rita in HR: We recently discovered that an employee is shopping online at work and is signed on to social media sites such as Facebook for about 3 hours per day. We don't know if she merely views it for a moment and then leaves it open or if she is actually posting and reading for those 3 hours. We also don't know if she is doing this exclusively during her lunch and break time, which combined would account for about 1 hour/day. In addition, she left her Gmail account open and we were able to read some of the mail she sent to a friend about the fact that she hates her supervisor.  We would like to fire her for these infractions. Are we are solid legal ground here?
-- Don’t Know Much about the eWorkplace

Dear Don't Know: You've got a complicated situation here. . .

Outdated Job Description May be Getting Us in Trouble

Dear Rita: Help! I'm the executive director of a nonprofit with 35 employees. Recently, one of our employees said he can't drive anymore due to vision problems. It's his job to drive to different client sites to provide training . . . we serve a rural community without much public transit. I looked at his job description -- which is outdated -- and it says nothing about driving! I can't believe it isn't listed there, but it's clearly part of his job and necessary to reach our clients. I know the Americans with Disabilities Act (ADA) says that employees must be able to do the essential functions of the job, but we never put driving into his job description. Now what do we do? Signed, Wish I Had a Time Machine

Dear Wish I Had a Time Machine: This sounds like a frustrating learning opportunity. Like you, many employers would often do things differently if they could go back in time, since managing employee disabilities is a huge area of risk, yet rarely clear-cut.

First let's talk about what you can do so that in the future you won't have a thorny situation in front of us as you do now. Then we'll talk about what to do given the old job description in place . . .

How Do You Count Employees . . . to Determine Which Laws Apply?

Dear Rita: We are a small nonprofit that provides summer day camps for youth. We have 6 full-time employees, and hire about 40 or so seasonal workers who staff our summer camps. We also hire a few administrative workers through a temporary agency to help us with enrollment before the summer. We occasionally have a few interns and casual employees that develop our curriculum, and hire independent contractors to provide specialized classes at our camps, like dance or photography. It seems crazy, but I can't figure out how many employees we have in terms of which employment laws apply based on this staffing pattern! Signed, Happy But Can't Count Camper

Dear Happy: Great question -- and an important one, because many employment laws are applicable only to employers with a specific number of employees. Figuring out whether your nonprofit has enough employees to be covered by a particular law can be complicated . . .

Transgender Employees: A Respectful and Legal Workplace Approach

Dear Rita: I manage a small team of employees in a close-knit office. Recently one of my employees told me in private that "he" is becoming a "she." I'm not sure how to deal with this. Do I call the employee "him" or "her"? I think when the other employees see him coming to work in women's clothing, they're going to freak out. What if he wants to use the women's restroom? I'm in totally over my head here!

-- Sincerely, Trying to Do the Right Thing

Dear Trying: This situation may be uncommon but it doesn't have to be difficult!

Let's begin by getting on the same page with some of the terminology. People whose gender identity is different from the gender they were assigned at birth are generally described as transgender. This term is also used to describe people whose gender expression . . .

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 . . .

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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