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.

 

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:

Nonprofit Personnel Files -- A Guide from Ask Rita

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 . . .

Can We Fire Someone Who Comes to Work Drunk?

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 . . .

Nonprofit Job Sites Reviewed and Rated

Where are the best sites to post jobs? Where are the best sites to look for nonprofit jobs? This article reviews and rates 31 sites for several specific criteria, and includes a Table of Contents and the Tom Battin Awards for Best Nonprofit Job Sites. We're grateful to Tom and many Blue Avocado readers who sent in their suggestions for creating this very useful resource,

For this article, we revisited, updated, and expanded the job websites we reviewed in our original piece for Blue Avocado (2009). We've also dropped some of the original ones. One important addition to this update are sites that use "web crawlers" to find jobs posted anywhere on the web, and then aggregate them for you.

First, the Tom Battin Awards for Best Nonprofit Job Sites:

But don't ignore the other 27 sites in this directory! Many have special features that will make them the best for you.

About job sites

Job sites serve two audiences . . .

[Click here to open PDF with complete article and directory]

Can I Be Held Personally Liable for Misclassifying an Employee as Exempt?

Dear Rita: I am the administrative manager for a small nonprofit. The executive director (ED) recently hired a new administrative assistant (AA) and wants to classify her as exempt to avoid paying her overtime when she attends evening board meetings and fundraising events. This new AA's main duties are typing board agendas, ordering office supplies, and serving as the general "go-to" person for out-of-office errands.

I know the new AA should be classified as non-exempt and receive overtime pay. The Executive Director says that if we pay her a salary and she agrees to being exempt, she can be exempt. I've given up trying to convince the ED, but I've heard that management can be held individually liable for non-payment of required overtime. Should I be worried about being held personally liable? -- Fearful

Dear Fearful: You may not have too much to worry about but your boss sure does. To protect . . .

Benchmarking and Analyzing Salaries: A Fast How-To

Everyone's heard of benchmarking and salary analysis, but what are some easy tools to use? This article is adapted from a chapter in The Nonprofit's Guide to Human Resources by Jan Masaoka, to be published by Nolo Press in the fall of 2011.

To illustrate ways to analyze salaries, let's look at a simplified example of an environmental research organization. First we'll chart salary ranges, then add benchmark salaries, and then look at two ways to look at analyzing individual salaries.

The five salary categories in this fictitious organization:

  • Senior Executive: members of the management team and department heads. Salary range . . .

Can We Discriminate in Favor of People with Disabilities?

Dear Rita: Our agency serves clients with mental health needs, and we like to provide employment opportunities to individuals with mental illness. Can we create the position of peer counselor and in the job advertisement say that the applicant should have a mental illness? We are doing this not only to provide employment opportunities to individuals with mental illness, but also so our clients can better relate to our counselors and the counselors will better understand the challenges facing their clients. Is it lawful to give preference in hiring to applicants with disabilities? Signed, Confused

Dear Confused:

The short answer is yes, if you're careful. The Americans with Disabilities Act (ADA) only protects . . .

The HR of Nonprofit Romance

Dear Rita:

At our organization, two members of the executive team are married to one another. I've been tasked with updating our Employee Handbook. Many of the sample handbooks seem to have anti-nepotism or conflict of interest policies which prohibit employees from dating or being in a relationship with co-workers. Are we legally required to prohibit office relationships? Signed, In a Quandary Over Love

Dear In a Quandary:

Love may be a many splendored thing, but love is a battlefield, too. And therein lies the rub for every employers' HR practices in this area. This is one of those topics where employer policies are all over the map, especially in the nonprofit world where it is not uncommon for agencies to be founded by families or spouses. So unfortunately (or fortunately!) there is no one-size-fits-all policy. However, there are some legal principles and practical matters to consider as you decide what policy best suits your agency in dealing with these real-life "love connections."

People looking for a simple solution may advocate a complete no-fraternization policy. But this strident viewpoint ignores the reality of work/life blending supported by a careerbuilders.com 2010 survey that found 37% of workers have dated someone they met at work and 30% of them have married a workmate. Rather than . . .

Emma's Disability is Hurting Performance: Can We Fire Her?

Dear Rita: Emma has worked as a case manager for our nonprofit for over 15 years. Lately, she has outbursts with clients and coworkers and she's way behind on her paperwork. We designed a Performance Improvement Plan. A couple of weeks later she informed us that she has migraine headaches and depression since her mother died. She gave us a doctor's note stating that she needed to transfer to a less stressful job, in essence a request for an accommodation. Fortunately, we had an administrative assistant position vacant and we were able to accommodate her request. Emma's performance in that job was less than satisfactory and she took a 3-month leave of absence under the Family Medical Leave Act (FMLA). At the expiration of her FMLA leave, Emma returned to her old case management job. During her absence, all case manager jobs were restructured and Emma now has to travel further to visit clients and fill out additional paperwork. She is missing a lot of work time, stating that her migraine headaches have become worse and that she never knows when they will flare up. Emma has exhausted her FMLA leave and there is no other vacant position to transfer her into. Are migraines a disability? We want to fire her for poor attendance . . . but can we do that? -- Pulling My Hair Out

Dear Hairless: The American with Disabilities Act (ADA) applies to . . .

Protecting Staff from Co-worker's Violent Boyfriend

Q: Help, we have a wonderful staff member who is involved in a domestic violence situation and her boyfriend has threatened to come to our office to harm her . . . what should our nonprofit do to protect her and the other staff?

With one in four women in the United States experiencing domestic violence during their lifetimes (reference), this situation may arise at some point for many nonprofits. It's good that you are paying attention before an incident occurs. As just one example of what can happen, just last month three employees were killed in a workplace shooting in Albuquerque that was sparked by a domestic dispute.

Before we get to steps you should take immediately, let's start by defining domestic violence in the workplace: "violent behavior perpetrated against an employee while the person is working or . . .

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