Ask Rita in HR

Ask Rita in HR is actually written by three HR attorneys: Ellen Aldridge, Mike Bishop and Kim Medwar. 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.

 

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 . . .

Can Employees Smoke Medical Marijuana at Work?

Dear Rita: We recently offered a management job to a terrific candidate, with the condition that he pass both a background check and a drug test. When he tested positive for marijuana, he told us not to worry and produced a doctor's prescription for medical marijuana which he uses to relieve his pain from an injury. I don't want to set the precedent of having an employee come to work "stoned" but I am not sure what my legal obligations are. Can you help me out? -- Smokin' in Spokane

Dear Smokin': I understand your confusion! If the candidate were taking prescription codeine, you would seek a doctor's opinion on whether he could perform his job while under the influence. Here's some background information that hopefully "clears the air" (couldn't resist the pun) on this issue:

As of June 2010, laws legalizing possession of marijuana for certain medical purposes exist in fourteen states and the District of Columbia, including: Alaska, . . .

Is being a surrogate mother a profession?

Dear Rita: Over a year ago one of our employees at our preschool program became a surrogate mother. She was paid to cover her expenses for carrying the baby, and she had a beautiful baby boy who is now at his new home. Now, only eight months later, she's doing it again! Do we have to give her the same leave and job protection that we would give any other pregnant woman? And since she is, in effect, getting paid for being pregnant, does this qualify as a second job that is in conflict with her position with our agency? -- A New One On Me

Dear A New One On Me: What I don't know is the etiquette on baby showers for surrogate moms! What I do know is this: pregnant surrogate mothers. . .

Telecommuting and Flexible Work Arrangements: Do Them Right

Flexible hours and working from home are benefits that many nonprofits want to implement, but are not sure how to do it fairly and in a way that acknowledges the value of having people in the office together. Robin Erickson, Director of Finance and Administration for an environmental organization, shares with us two documents that reflect her organization's thinking on these issues: one is a process for analyzing requests, and one is a sample document (reviewed by HR attorneys) for employees who work from home to sign.

Working from home and other alternative work arrangements are desirable for several reasons: flexible hours can help employees and their families; telecommuting can save time and expense and natural resources, and customized arrangements can help retain valuable employees. But it's also hard to manage such flexibility fairly and balance it with the benefits of proximity in mind. At Save the Bay, with a modest office workforce of 26, we knew we couldn't afford to universally approve every request, so we devised a process for evaluating requests.

First, supervisors complete the following questionnaire when they receive a request from an employee:

Alternative Work Arrangement Questionnaire for Supervisors

Supervisors should complete . . .

Working from Home: Sidebar on Legal Issues for Nonprofits

This sidebar article accompanies Telecommuting and Flexible Work Arrangements: Do Them Right.

While Rita [the pseudonym for attorneys Ellen Aldridge and Pamela Fyfe of the Nonprofits Insurance Alliance Group] wholly agrees that alternative work arrangements are a great recruitment and retention tool for Nonprofits, compliance with employment laws cannot be ignored: out of sight should not mean out of mind. If you take the following guidelines into consideration when adopting alternative work arrangements for your staff, you'll stay on the right side of the law.

  • Accurately track time of non-exempt employees. Under state laws and . . .

Facebook + Employees = Yikes!

Dear Rita in HR: I'm hearing horror stories from other executive directors about employees posting confidential information at Facebook, for instance, and lawsuits against nonprofits that looked at these sites as part of reference checks. I myself still pen letters by hand, and I know next to nothing about the pitfalls of social media. Please help me out here! -- Anxious and Ignorant

Dear Anxious: Your befuddlement and anxiety about social networking are not uncommon! I'll try to answer your questions about employee use of social networking, and employer use of the web in checking references on job applicants. Because you mentioned Facebook, I'll focus there, but my advice applies to all social networking, such as Twitter, LinkedIn, MySpace, YouTube and so forth. At the end of this article you'll find a Sample Social Networking Policy.

Can we regulate what employees say on Facebook?

The answer is "sometimes" and "maybe."

On social networking sites such as Facebook the line between work and non-work use can be fuzzy. What seems like harmless, fun gossip on a personal level can be damaging to the organization whose employee has posted.

Recently, one nonprofit manager posted on Facebook that his agency was considering layoffs and he included a photo of a co-worker leaning . . .

Terminate Employee After One Year of Sick Leave?

Dear Ask Rita: Our agency limits the maximum time an employee can be out on a medical leave of absence to one year. One employee who has been out with a medical condition is now approaching the one-year mark, but she hasn't been in contact with us for the past four months. I don't have the time to call every employee on leave. Am I OK just sending this employee a termination letter if she does not return at the end of the year? Signed, Overwhelmed in HR

Dear Overwhelmed: This common question -- Can an employer terminate an employee who exceeds the maximum medical leave? -- raises many complex issues. Employees are not infrequently out on extended medical leave for reasons such as stress, cancer treatments, chronic back pain, or other medical condition. What is clear, however, is that you want to tread carefully in this area. In September 2009 the largest Americans with Disabilities Act (ADA) settlement in a single lawsuit was announced when . . .

When Swine Flu Hits the HR Department

Nonprofits -- so often focused on helping others -- may be finding that swine flu (H1N1) requires their attention in terms of employee health. Nonprofits have a long history of innovation and heroism in health care and in disasters; we need to be sure we manage the flu and its implications well.

Dear Rita in HR: I manage HR at our nonprofit and need advice in dealing with the expected impact of the H1N1 flu at our workplace. I've heard that from 25% to 50% of workers could be out sick at any given time. Among the questions I have: If I think an employee is sick with the H1N1 virus, can I send that person home? Can I require the employee to use sick/PTO leave? Can I dock the employee's pay? Can I tell the employee how long to stay at home? To prevent the spread of the flu, can I require an employee to work from home?

And if an employee is taking care of a sick relative, can I require the employee to stay out past the contagious period? If so, can I require that they use sick days for it? Can I require a doctor's note to return to work? HELP

Dear HELP: Your concerns are shared by nonprofits everywhere and because we are entering uncharted waters here, some of the answers remain . . .

Criminal Records Checks for Prospective Staff and Volunteers

Dear Ask Rita: I keep being told we should do criminal record checks on prospective employees and even volunteers and board members. But how? Is there a simple and cheap way to do this? And do we need their permission to do it? -- Reluctant to get into the fingerprint checking business

Dear Reluctant: Background screening is a good idea for all organizations, especially those working with vulnerable populations, so we're glad you asked. As you know, there are many types of screening, such as checking criminal history or credit history, verifying credentials or licenses, reviewing motor vehicle history, or doing reference checks. This article addresses only checking on criminal history.

Whoever is suggesting criminal background checks probably also told you . . .

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