Ask Rita in HR • By Siobhan Kelley • November 26, 2012 • Email Print

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:

Ask Rita in HR • By Pamela Fyfe • June 10, 2012 • Email Print

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 . . .

Ask Rita in HR • By Ellen Aldridge • January 10, 2012 • Email Print

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 . . .

Ask Rita in HR • By Pamela Fyfe • November 6, 2011 • Email Print

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 . . .

Ask Rita in HR • By Jan Masaoka • October 31, 2011 • Email Print

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!

Ask Rita in HR • By Ellen Aldridge • September 19, 2011 • Email Print

Dear Rita in HR: Should social workers be classified as exempt or nonexempt? In the process of updating our job descriptions I have looked at many from other agencies and am confused in particular about one issue: in some cases social workers are classified as exempt (exempt from overtime) and in other cases they are nonexempt. What are they? Signed, Dazed & Confused

Dear Dazed:  Good news! We received some clear guidance last week with the first federal appellate decision directly addressing the overtime exempt status of social workers in Solis v. State of Washington DSHS (9th Cir. 2011) No. 10-35590. The quick answer is that some, but not all, social workers meet the professional exemption -- and surprisingly, it doesn't only depend on the job duties: it also depends on the educational prerequisites of the position.

The Solis court held that the Washington social workers were not exempt from the Fair Labor Standards Act (FLSA). The responsibilities of the social workers in the Solis case look at first glance as if they would make the positions exempt. For example, they were responsible for:

• Investigating child abuse and neglect
• Developing and recommending treatment plans to courts
• Evaluating child and family progress in meeting treatment plans
• Placing children, and
• Recommending whether parental rights should be terminated.

But the court stated they were nonexempt not because of the job duties, but because . . .

Ask Rita in HR • Volunteerism • By Ilona Bray, J.D. • August 21, 2011 • Email Print

Whether kids sell cookies or help clean up a park, they are welcome volunteers. Just be sure you know the basics of how to protect them and your organization when it comes to liabilities (at the end of this article is a link to a sample waiver):

As a kid, I sorted food donations for Lithuanian refugees because my mother was a leader in the Seattle Lithuanian Community. I sold Camp Fire Girls' mints because, well, I had to. I interned at the Seattle Aquarium where I wore a badge that said, "Ask me! I know everything!" And I interned at Children’s Hospital because I hoped it would make my college applications look better.

But somewhere along the way, something must have clicked, because by the time I finished law school, I asked my corporate law firm employer, "Could you wait six months while I intern at Amnesty International?" And a few years later when I quit corporate law, the first thing I did was a volunteer internship at Northwest Immigrant Rights Project.

If my experience is a guide, a childhood experience as a volunteer can lead to a lifelong commitment to giving back. And if kids are among your clients or constituents, then getting them involved is a natural. But you'll want to be sure you've got basic protections in place (I guess I haven’t completely shed my lawyer hat!).

Liability basics for children volunteers

Here are the first things to think about:

Ask Rita in HR • By Ellen Aldridge • August 4, 2011 • Email Print

Dear Rita: We've never paid too much attention to our personnel files, but we've just entered a contract with the county and we think it's time for us to get our act together on this. I know we  need a personnel file for each employee –- but what should be in it? Signed, An Accidental HR Manager

Dear Accidental: It's great that you are asking this question now! Good personnel files are important not just for your county contract but because documentation of various employment matters is required by many state and federal employment laws and most employee-specific documentation is best retained in a personnel file.

• For example, to comply with the Fair Credit Report Act (FCRA) when doing a background check, you’ve got to give specific written notices and get a written authorization if a third party conducts the records check. The proof that you've complied with FCRA should be kept in each individual’s personnel file.
• The file should also contain performance evaluations and any documentation that evidences the employee’s employment status (a signed offer letter, an Employee Change Form reflecting things such as job title, wage rate, promotions, benefit coverage, and leaves of absence). The personnel file should read like the rings of a tree, giving evidence of an employee’s history with your agency.

The rest of this article provides an overview of how to manage your organization's personnel files and a checklist of documents to include in a personnel file. First, let’s talk about what should not be in a personnel file, which is just as important from a legal perspective. 

What NOT to put in . . .

Ask Rita in HR • By Pamela Fyfe • June 27, 2011 • Email Print

Dear Rita: Our receptionist reeked of alcohol when she arrived at work today. This is not the first time this has happened, especially on a Monday morning. We have spoken to her several times and, as in the past, her supervisor took her aside and asked if she had been drinking. The receptionist denied she had any alcohol to drink that day, but said she had attended a party the night before where she had been drinking. Because she is the face of our organization, we cannot have clients checking in with an employee who so often appears to be "under the influence." What can we do about this situation, as she is not actually drinking on the job nor does it seem to affect her performance? -- Stumped and Frustrated

Dear Stumped and Frustrated: The first place to go is . . .