Ask Rita in HR

Ask Rita in HR is actually written by two HR attorneys: Ellen Aldridge and Mike Bishop. 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.

 

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 . . .

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 . . .

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 . . .

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 . . .

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:

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 . . .

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 . . .

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!

Are Social Workers Exempt or Nonexempt? Help!

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 . . .

When Kids Volunteer: Liability Basics

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:

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