Frequently Asked Questions Volunteers, Employees, Compensation, and Benefits

Transcription

1 Frequently Asked Questions Volunteers, Employees, Compensation, and Benefits 1. Are we required to provide benefits to part-time employees? Employers usually are not required to provide part-time employees with fringe benefits such as paid holidays, vacation, sick time, or personal days. The issue will be governed by the organization's own personnel policies and practices, including collective bargaining agreements in the case of union employees. Generally, no state law mandates that part-time employees receive health benefits. However, in New Jersey, if an employer participates in the NJ Small Employer Health Benefits Program, then all employees who regularly work at least 25 hours a week must be allowed to enroll in the program. Pension plans are a different story however, so consultation with pension plan administrators and legal counsel is advised. 2. Our funders require reports on our employees hours and activities, but some of our employees are not completing their time sheets or activity reports. Can we withhold their pay until they turn in their reports? No. Withholding pay violates most state wage/hour laws. However, you can discipline these employees for violating organizational policies. For example, you might suspend them or withhold future assignments until they submit the required paperwork. Suspensions of exempt employees must comply with the special rules applicable to such employees so that they continue to be paid on a salary basis. These special rules are discussed in the U.S. Department of Labor Regulation 29 C.F.R Do we have to give our employees breaks during their work day? Federal law does not require an employer to provide employees with rest periods or unpaid or paid meal periods during the workday. The federal regulations do specify, however, that if an employer provides "rest periods, the employer must count the rest periods as "hours worked" and must compensate the employee for such time. Rest periods typically last between 5 and 20 minutes. Lunch periods, which typically are at least 30 minutes long, are not treated as hours worked as long as the employees are relieved of all work responsibilities. State law may require breaks in some situations. For more information, please consult Pro Bono Partnership or your organization s legal counsel. In unionized workplaces, the contract between the employer and the union may require the employer to give union members rest periods and/or paid or unpaid lunch periods. 4. Can an employee be both an employee and a volunteer? Our organization wants to hire someone to help in the office. We can only afford to pay her for 15 hours a week, but she is willing to work an additional 8 hours each week as a volunteer. Would we be violating wage/hour laws if we do this? Can we protect ourselves by having her sign a waiver acknowledging that she is volunteering her service for those 8 hours?

2 A worker who performs the same duties both as an employee and a volunteer will be considered an employee for the total number of hours worked for the organization. In the situation described here, the worker would be entitled to claim compensation for the full 23 hours she works each week. We advise nonprofits that when their paid staff members want to volunteer, they should only be permitted to do so (1) in a capacity that s wholly different from their paid work and (2) during hours outside their normal work hours. For example, a development assistant who normally works 9:00 to 5:00 might volunteer to answer phones for her employer s counseling hotline two evenings a week, but should not volunteer to staff a special evening fundraiser for the organization. In the latter example, her duties as a volunteer would be too similar to her duties as a paid employee. Even if the volunteer services are distinct from the employee s paid services, it is prudent to have the employee sign a letter stating that the she understands that (1) she is performing these distinct [XYZ] services as an unpaid volunteer, (2) there is no expectation on the employer s part that she perform these volunteer services, and (3) the hours of volunteer service do not count towards any accrual of employee benefits. 5. Under what circumstances may a nonprofit organization employ a minor (a person who has not reached the age of 18)? Each state has specific requirements about the hours a minor employee may work. Check the Department of Labor website for your state. A summary of state laws on the employment of minors in Connecticut, New Jersey, and New York appears below. In general, minors are entitled to be paid at least the minimum wage for the hours they work, but there are a handful of exceptions. Under federal law, summer camp employees are exempt from minimum wage requirements. The U.S. Department of Labor also permits sub-minimum wages or stipends to be paid to workers as part of a bona fide training program or as part of a bona fide student intern program. Programs must meet several strict criteria in order to qualify for this exemption. If the state in which the minor is employed does not have the same minimum wage exemption as federal law, then the federal exemption will not apply. Call the Pro Bono Partnership for specific guidance on this topic. Some employers attempt to circumvent wage/hour laws by compensating young employees nonmonetarily and calling them volunteers. This is not appropriate. A bona fide volunteer gives his/her time freely to the organization and has no expectation of any type of compensation. Connecticut To be employed, all minors must first obtain a Statement of Age Form, also known as an employment certificate or working papers, from their local school district. A written promise of employment from an employer is required in order to get working papers. Minors who are 14 and 15 years old may work as babysitters or in professional offices, licensed summer camps, retail (non-school weeks only), or hospitals or rest homes (but may not perform food service or laundry duties). They may not work in restaurants or food service, mechanical or manufacturing facilities, retail establishments during school weeks, or in any environment where they would be exposed to hazardous substances or conditions. 2

3 Minors who are 16 and 17 years old may not work in any hazardous occupations, including, but not limited to, excavation, roofing, or any job which includes driving. They also may not work in manufacturing or mechanical facilities. Minors who have graduated from high school but are not yet 18 years old may work in the same industries (including hazardous work) and for the same number of hours as adults. For more information, consult the Connecticut Department of Labor website. New Jersey All minors must obtain an employment certificate or working papers from their school district. New Jersey is one of the few states that require a minor, until his/her 18 th birthday, to secure an employment certificate for each employer, rather than a single permit for all employers as in New York and Connecticut. The certificate is only valid for the employment stated on it. A minor cannot get working papers until he/she has a promise of employment signed by the prospective employer that sets out the specific nature of the work, the hours, and the pay. There are limitations on the number of hours a minor can work. A minor s age determines the type of work he or she may do: Under age 11, minors may engage in theatrical productions. At 11 years of age, minors may also do residential newspaper delivery. At 12 years of age, minors may also do yard work and farm work. At 14 years of age, minors may do the jobs listed above, plus most standard office or clerical work, cashiering and sales, delivery other than with a motor vehicle, hospital and health agency jobs, restaurant work, professional assistants, golf caddying, and camp counseling. They may not work in jobs where they are required to use power machinery or are exposed to other hazardous conditions. At 16 years of age, minors may do the jobs listed above, plus some jobs involving machinery. Please consult the Pro Bono Partnership for advice on what constitutes appropriate mechanical employment. Minors are prohibited from working in construction or other dangerous occupations, with two exceptions: Minors who are 14 through 17 years of age may volunteer to work for nonprofit organizations engaged in the construction of affordable housing as determined by the State Commissioner of Labor. However, they may not come in contact with power-driven machinery; nor work on any excavation, scaffolding, or roofing; nor be exposed to hazardous substances. Moreover, the nonprofit must secure liability insurance to compensate for all injuries and illnesses sustained by minors as a result of their participation in the construction. Minors who are 12 through 17 years of age are permitted to work as volunteers at community operated noncommercial recycling centers, provided that they do not come in contact with hazardous machines or substances. Under New Jersey state law, certain workplaces, including nursing homes, professional offices, and libraries, are not required to pay minimum wage. However, jobs related to food service in any of these workplaces require the payment of the minimum wage. 3

4 For more information, consult the New Jersey Department of Labor Child Labor website. New York Minors must obtain an employment certificate or working papers from their local school district prior to beginning employment. In general, minors who are not yet 14 are not eligible for an employment certificate and cannot be employed. However, working papers are not required for the following activities: babysitting, entertainment/performance work, and casual employment consisting of household chores or yard work in and about a residence or the premises of a nonprofit organization (but note that minors under the age of 16 may not operate any type of machinery and no minor may operate hazardous machinery). A minor must give his/her employer the employment certificate when he/she begins employment. The employer retains the certificate and returns it to the minor only when his/her employment ends. Minors who are 14 and 15 years old must obtain a Student Non-Factory Employment Certificate. They may only work after school hours and during vacations. They may do clerical work or delivery work, provided that such deliveries can be made by foot, by bicycle, or by bus. They may not work in construction or manufacturing. They also may not paint, clean the exterior of a building, act as a helper on a motor vehicle, or operate machinery. When school is in session, they may work a maximum 18 hours per week, with a 3 hour daily maximum on weekdays. During vacations (meaning school is closed for an entire week or longer), they may work up to 40 hours per week for a maximum 8 hours per day. From the day after Labor Day until June 20, they may only work between the hours of 7 AM and 7 PM. From June 21 through Labor Day, they may work between the hours of 7 AM and 9 PM. Minors who are 16 or 17 years old and in school are required to obtain a Student General Employment Certificate. Minors this age also may not work in construction or manufacturing, act as a helper on a motor vehicle, or operate hazardous machinery. When school is in session, they may work a maximum 28 hours per week, with a 4 hour daily maximum on weekdays. During vacations (meaning school is closed for an entire week or longer), they may work up to 48 hours per week for a maximum 8 hours per day. Generally, they may not work between 10 PM and 6 AM. Minors who are 16 and 17 and have left school must obtain a Full-Time Employment Certificate. With this certificate, these minors may be employed in non-hazardous jobs. However, they may not perform hazardous activities, such as operating certain power-driven machines, working in construction, helping on a motor vehicle or cleaning, oiling, wiping, or adjusting belts to machinery. More information is available from the New York State Department of Labor. 6. If a nonprofit organization provides technology to non-exempt employees that allows them to perform work outside of normal business hours (e.g., a Blackberry, home access to the employer computer systems), is the nonprofit employer at risk for having to pay for work performed under these circumstances? Yes, the employer will be obligated to pay for all hours actually worked and may be at risk for paying overtime if a non-exempt employee has worked more than 40 hours in a workweek. 4

5 If a nonprofit wants to minimize the risk of this happening, it should have written policies governing work outside of normal business hours, working from home, and/or overtime. Typically, such policies will be in an employee handbook that is distributed to all employees. A written overtime policy should explicitly state that all overtime must be expressly pre-authorized by the employee s manager. If a non-exempt employee violates the employer s polices regarding after-hour work or obtaining approval to work overtime, the employer should counsel the employee that future violations of the policy will result in discipline, up to and including termination. The employee must be paid for the hours actually worked even though unauthorized. In addition, managers of employees with afterhours access to employer-issued technology and/or employer computer systems should have a timely discussion with such employees about appropriate usage of such technology. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (i) avoiding penalties under the Internal Revenue Code or any other U.S. federal tax law; or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. This document is provided as a general informational service to volunteers, clients, and friends of the Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship. Copyright 2010 Pro Bono Partnership, Inc. All rights reserved. No further use, copyright, dissemination, distribution, or publication is permitted without the express written consent of Pro Bono Partnership, Inc. Revised September