Associations need to have a special take on legal issues, because they are nonprofit, small employers and they may have to comply with laws in the District of Columbia, which has been a bellwether in promulgating liberal employment laws, causing some legal experts to call it the “California of the East.”
To explain employment issues of top concern to association executives, an attorney and a human resources expert discussed best practices and employment law to association executives and vendors at an event sponsored by the Finance and Administration Roundtable on Feb. 18 in Washington, D.C.
Although the session was for association executives, many of the issues and best practices matter to other employers, regardless of size and where in the country they are located.
1) Background Checks: Guidelines from the U.S. Equal Employment Opportunity Commission on how background checks should be handled must be taken more seriously by companies nationwide, to the point that state laws for Maryland and the District of Columbia have adopted the EEOC stance. The EEOC position on background checks is that: (1) Inquiries about criminal history may not be made in the job application or in the interview. (2) But after an employer makes a conditional job offer, then it may make the inquiries and do a criminal background check. (3) If that check reveals a past conviction, the employer may withdraw the job offer; but (4) withdrawal of the job offer can’t be a knee-jerk reaction, it must be preceded with a specific analysis of the candidate, including perhaps how serious the conviction was, how long ago in the past it was. (5) Finally, the candidate must be told that the results of the background check was the reason he or she was not hired, said attorney Hugh Webster of Webster, Chamberlain and Bean.
With that in mind, affected employers should take questions about felony convictions off of application forms and out of interview questionnaires, senior HR consultant Julie Boynton added.
2) Unpaid Internships: The U.S. Department of Labor long has used a six-point test to determine whether an internship can be unpaid. The two overarching determinants of whether the work can be unpaid is: the intern’s experience; and whether the intern is getting more out of the internship than the employer. But employers got a boost from a 2nd Circuit decision in July 2015: Glatt v. Fox Searchlight Pictures, 791 F. 3d 376 (2nd Cir., 2015)). In that case, the court said if that internship confers college credits on a student, then the internship is considered to be sufficiently educational and as a consequence, may be unpaid, Webster said.
3) Whistleblower Policies: A federal district court case in the District centered on an employee working at a non-profit complaining about the behavior of certain board members. The misconduct she complained about was not fraud or financial mismanagement. She was fired. She claimed she was improperly retaliated against for complaining. At first, the court noted there was nothing illegal about the board members’ conduct she complained about. But the company failed to limit whistleblower protection to only when a worker complained about improper. She successfully argued that company policy defined activity that required no retaliation very broadly. She was able to pursue the company under a breach of contract basis.
Webster advised companies to define the kind of misconduct that gets whistleblower protection should very narrowly; that is, as not going far beyond financial misconduct. There are unintended consequences to giving whistleblower protection for a broad array of complaints; so they should be limited.
4) Paid Leave: In the District of Columbia, family leave might have to be compensated. The city council is still holding hearings and doing mark-up on it. Eligible employees would be paid 100 percent of their average weekly wages up to $1,000, plus 50 percent of average weekly wages in excess of $1,000, up to a maximum of $3,000 per week. The DC Council Chair, Phil Mendelson, on Feb. 12 proposed scaling the benefit back to 12 weeks to capping the weekly benefit at $1,500, Boynton said. Even with that scale-back, the District law would be more than twice as generous as any jurisdiction in the country on paid leave, the experts agreed.
Webster also discussed a District of Columbia wage transparency law, saying employers may not prohibit workers from discussing their salaries, disclosing their salaries or disclosing other peoples’ salaries. The only exception to that rule allows a prohibition on salary talk by an HR director, who has access to everybody’s salaries.
Another trend discussed was how employers are doing employee evaluations more frequently. Up to 70 percent of companies are considering making these more frequent, Boynton said. This resolves situations in which, say: (1) the performance of an employee who received a January review shows significant degradation between February and November; or (2) a supervisor wants to encourage a new hire and gives him or her a glowing review, but again degradation occurs. In such cases, firing the employee becomes risky if the employee sues, because the performance review does not reflect any of the problems that developed between the review and the termination.
Innovations include more quarterly or even monthly reviews, or even real-time feedback that’s logged into computer applications. Enhanced ability to keep a paper trail of negative performance evolution helps the employer legally, if a need arises to defend a termination decision in court, the lawyers said.
Another benefit popular in the nonprofit community is telecommuting, because such organizations sometimes offer superior benefits in lieu of higher salaries, and telecommuting is one such benefit.
Telecommuting is a work arrangement in which some or all of the work required by the company is performed at an agreed-on location outside of the office, Boynton said. The employee sets up his or her own office environment; most often he or she supplies equipment used for phone, e-mail and conferencing, a company laptop computer being the main exception to that rule.
An important practice for telecommuting is to use a formal written agreement that outlines do’s don’ts and expectations; how it is granted, rescinded and put on hold, the experts said. They went on to add:
- Telecommuting should not be offered to every job title; people who need to actively collaborate with people cannot telecommute; an example being receptionists.
- It should be offered to good performers only, not bad performers. So if they’re on a performance improvement plan, then telecommuting needs to be rescinded.
- People who want to work in the office — because they need interaction with other people, lack adequate facilities at home, or because they’re more productive in the office — should be allowed to turn down telecommuting.
- But it can be a very good idea to withhold telecommuting offers until after they pass a 6-month probation period.
“Telecommuting during the initial period of employment is not a best practice. I suggest you consider letting the person get on board, and be with you for six months, see how they are, letting them acclimate; it just lets them establish relations with co-workers. Then after that let them consider telecommuting,” Boynton said.
Of course, telecommuting brings with it hidden values of: (1) enabling the employers with limited office space to save on space, by perhaps allowing the employer to house two people in one workspace; (2) it can be a selling point once a recruiter sets his sights on a candidate the company wants; (3) it can be a retention tool, helping people stay. People spend a lot of time, energy and money on commuting, and telecommuting can have real monetary value.
Companies offering telecommuting should take a look at liability issues and consider whether it is creating a large number of outlying offices for the workers’ compensation insurance purposes, the attorneys said.