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

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Outdated Job Description May be Getting Us in Trouble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 I looked at his job description -- which is outdated -- and it says nothing about driving!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 . . .

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 . . .