Protecting Your Non-Profit From Employment Law Traps. Attorney ilesh P. Patel Mahadev Law Group, LLC Human Resources & Employment Law Solutions

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1 Protecting Your Non-Profit From Employment Law Traps Attorney ilesh P. Patel Mahadev Law Group, LLC Human Resources & Employment Law Solutions

2 Speaker background Discussion is legal information, not legal advice No attorney client privilege; do not reveal confidential information in group setting. Purpose today is to learn to spot troublesome issues and to be cautious before making a decision you might regret. We will not be able to cover every major law or cover those discussed in detail. Treat this as an overview of major issues. Introduction

3 Your employee goes on Facebook and says her co-workers are lazy unproductive thugs. Protected or unprotected activity? A deaf person applies to be a lifeguard. Can the employer reject him outright? An employee raises a concern that his manager is biased against South Asians (Muslims, Sikhs, etc). What do you have to be careful of? An employee claims you did not pay proper overtime and sues. You haven t kept proper records. Will that help you avoid the overtime claim? An applicant tells you he used to be an undocumented worker but he is fine now. Can you reject him? Should you conduct a background check to make sure he is legal? Scenarios Some From The Headlines

4 Law of the workplace Management Law workplace policies, supervision, duties employees owe to employer, and employer obligations to employees. Involves compliance, risk management, setting policies, implementing policies, and preventing or dealing with employment based complaints/litigation. What is Employment Law?

5 So many!8 of them. Federal statutes, agencies and regulations. State statutes, agencies and regulations. County ordinances and agencies City ordinances and agencies Case law federal and state rulings that create new requirements. Sources of Employment Laws

6 No quick easy answers to questions. Beware of common sense solutions. Law is logical but that does not mean it is common sense. Law shifts constantly. Whether a decision is legal depends on whether one of those sources regulates that topic or whether there is a conflict between different sources. Good management practices may trump a minimal legal obligation. How To Deal With Employment Issues?

7 Look at where you are in the employment cycle: Before: recruiting stage, application process, interviews, and insurance issues. During: developing policies, administration, management, discipline, and termination. After: unemployment insurance, health insurance continuation (COBRA), reference checks. What Triggers Employment Issues?

8 Federal: Title VII of the Civil Rights Act of 1964 (Title VII) Immigration Reform and Control Act (IRCA) Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) National Labor Relations Act (NLRA) Fair Labor Standards Act (FLSA) State: Wisconsin Fair Employment Act (WFEA) Local: Madison Equal Opportunity Ordinance (39.03) Major Laws AKA Alphabet Soup

9 Discrimination Sexual Harassment Accommodations Overtime and Minimum Wage Employment Authorization Verification Protected Concerted Activity Recordkeeping Major Issues

10 Intentional disparate treatment (no men, no one over 40) Unintentional disparate impact (education, height, or weight) Think in terms of protected groups and whether they are affected, not just in terms of your intent. Protections for: age, ancestry, arrest record, color, conviction record, creed, disability, genetic testing, grooming, honesty testing, marital status, military service, national origin, political beliefs, pregnancy or childbirth, race, sex, sexual orientation, use or non-use of a lawful product off work premises after-hours. Discrimination prohibited in: hiring, compensation, benefits, promotions, discipline, termination, or other terms and conditions of the workplace. Major Issues - Discrimination

11 Unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment. Major Issues Sexual Harassment

12 It is discrimination to refuse to reasonably accommodate an employee's or prospective employee's disability or religion. Exception for disability if the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business. What is reasonable will depend on the facts of the case. A reasonable accommodation is not limited to what would allow the employee to perform adequately all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance. An accommodation may require modifying, and even eliminating, some of the employee s job responsibilities. Major Issues Accommodations

13 Need to consider Wisconsin and federal laws. Wisconsin s minimum-wage requirements apply to all employees at private employments (including nonprofit organizations), whether paid on a time, piece-rate, commission, or other basis. Overtime required for non-exempt employees; 1.5x pay for hours in a workweek over 40. Comp time only available for govt. workers. Job duties determine non-exempt status, not whether person is salaried. Exemptions for executive, administrative, professional, highly compensated, and computer employees. Independent contractors are not covered by these laws but must carefully evaluate whether individual meets contractor status. Not enough to have a simple agreement. Major Issues Overtime & Minimum Wage

14 All U.S. employers must complete and retain a Form I-9 for each employee they hire in the United States. This includes citizens and noncitizens. Must complete the form within three days of hire but must wait until job offer is accepted. Employer s duty is to inspect documents and see if they are genuine. No need to be a document expert. Employee decides which documents to present. Employer must not ask for specific documents. That s document abuse and discrimination. Cannot refuse to hire someone who s documents or work authorization will expire in the future. Major Issues Employment Verification

15 Enforced by the National Labor Relations Board even in non-union environments. May not apply if interstate goods purchased or sold are less than $50, (what is your purchasing budget?). Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. Will the improvements sought whether in pay, hours, safety, workload, or other terms of employment benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected? Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection. Major Issues Protected Concerted Activity

16 Tax forms. Consult with your accountant. Under FLSA: Every employer covered by the FLSA must keep certain records for each covered, nonexempt worker. Payroll records required by Wisconsin: Form 1-9 recordkeeping: Other requirements may be triggered based on size: Title VII and ADA require 15 employees. Major Issues Mandatory Recordkeeping

17 Conduct an audit of practices, policies, and recordkeeping. Think through your obligations, create compliant policies. Do not apply policies blindly look at the facts and whether person is in a protected group. Evaluate obligations before making a decision. Document your decisions and choices. Get in habit of complying, look for ways to manage risks, and look out for ways employee could use a protected status against you. Watch out for unlawful retaliation. Keep up with recordkeeping obligations. How To Avoid Employment Traps

18 At the hiring stage: be careful not to ask for information or questions that reveal protected information, especially regarding disabilities. When creating a handbook, some key sections: employment at will; disclaimer it s not a contract, only guidelines; EEO, anti-discrimination, sexual harassment policy; social media policy that avoids chilling protected concerted activity; don t pull one off the internet (at least get an HR consultant). Do not apply workplace policies blindly. Just because there is a rule or things have been done a certain way does not always make it legally compliant. Before disciplining or terminating someone, know: is the person in a protected group; if so, does the law prohibit you from taking that action or require an accommodation?; if you are not prohibited, document the non-discriminatory reasons for the action and keep good records. How To Avoid Employment Traps

19 Your employee goes on Facebook and says her co-workers are lazy unproductive thugs. Protected or unprotected activity? A deaf person applies to be a lifeguard. Can the employer reject him outright? An employee raises a concern that his manager is biased against South Asians (Muslims, Sikhs, etc). What do you have to be careful of? An employee claims you did not pay proper overtime and sues. You haven t kept proper records. Will that help you avoid the overtime claim? An applicant tells you he used to be an undocumented worker but he is fine now. Can you reject him? Should you conduct a background check to make sure he is legal? Scenarios Some From The Headlines

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