NON PROFITS NON PROFITS ARE EMPLOYERS TOO Overview of Employment

NON-PROFITS NON-PROFITS ARE EMPLOYERS, TOO Overview of Employment Law for California Non-Profit Managers & Supervisors Non-Profit Presented by: Yesenia M. Gallegos SILVER & FREEDMAN, APLC 2029 Century Park East 19th Fl. Los Angeles, CA 90067 310.282.9400 tel 310.282.2500 fax 310.282.9437 Direct 310.282.2537 Dir Fax Legal Framework EMPLOYMENT LAW 101 2 If this were 1930, this presentation would be over Today, there are many regulations on employment. What happened? Early 1900’s – courts said employment laws violated federal and state constitutional laws allowing freedom to contract. See Derr v. United States Workers Compensation Laws: Provides insurance to cover medical care and compensation for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. Employee gets less compensation but a more automatic remedy called the “compensation bargain.” The first state law was passed in Maryland in 1902, and the first law covering federal employees was passed in 1906. By 1949, all states had enacted some kind of workers' compensation statute. Mid 1930’s – Rise in Organized Labor. If workers had one voice they could have more power (e.x. - National Labor Relations Act (“NLRA”), applicable to unions) Late 1950’s and early 1960’s – Right to minimum wage, right to overtime, right to join union, right to be free from discrimination and theory of the at-will employment relationship. 3 Legal Framework The At-Will Employment Relationship “An employment, having no specified term, may be terminated at the will of either on notice to the other.” California Labor Code Section 2922 If this policy is communicated to employees, it will: -Lower your organization’s exposure to lawsuits -If a lawsuit is filed, it will serve as an affirmative defense 4 Legal Framework Example of how the at-will relationship is used in litigation Employee is fired. Employee/Plaintiff sues for: •Wrongful Termination/retaliation •Breach of employment contract Former employer (Defendant) will argue: You were an at-will employee. Therefore, I had the right to terminate your employment at any time, for any reason or for no reason at all. The Employee (Plaintiff) will come up with a variety of answers to get around the at-will policy: exceptions to the at-will rule • • • Oral Agreement Written Agreement Implied Agreement - “I believed that my employer needed good cause to terminate my long term employment” 5 Statutory Exceptions to AtWill Rule - Federal Title VII of the 1964 Civil Rights Act Race Ancestry National Origin Religion Sex/Gender Pregnancy* 6 Statutory Exceptions to AtWill Rule - Federal Americans with Disabilities Act (Disability) Age Discrimination in Employment Act (40 and +) Veterans Act (Veteran) Immigration Reform and Control Act (citizenship) National Labor Relations Act (concerted activity) Employment Retirement Income Security Act (ERISA) (employment benefits) Bankruptcy Act (bankruptcy on a credit report) 7 Statutory Exceptions to AtWill Rule - State Depending on state, there may be additional exceptions to the at-will employment doctrine (i.e. protected classes) Marital status Sexual orientation Sickle-cell anemia Medical conditions related to cancer Genetic characteristics Workers compensation retaliation Lawful, off-duty conduct Political affiliations Gender identity and expression 8 Judicial Exceptions to the at At-Will Rule Written contract Implied contract requiring good cause for termination Implied contracts are based on the employee’s reasonable expectations and reliance In implied contracts, it is tough to tell when the offer was made, when acceptance occurred, and how contract was formed. --e.x. “I should not have been terminated because I passed my probationary period” May be defeated by a well written at-will employment policy in your employee handbook! Termination in violation of public policy “Whistleblower” type actions Any other type of action so long as it is tethered to a law 9 Pre – Employment Issues EMPLOYMENT APPLICATIONS Accept all applications Do not just accept resumes, get an application from everyone. Make sure application is complete, dated and signed by employee Applicants should receive a copy Watch for gaps in employment (red flags) Check references (“I left to search for better opportunities”) Verify education, licenses, etc. (“I have a BA from the University of Houston, Texas”) -See Attachment Number 1 (employment application) 10 Employment Applications “On a daily basis, we review applications with the purpose of finding the candidate the right job. In my experience, we have found that at least about 15% of applicants either lie about their education or skills.” Judy D'Arcy Consultant 11845 W Olympic Blvd Suite 725 Los Angeles, CA 90064 TEL 310-445-2727 FAX 310-445-8727 jdarcy@csi4jobs.com 11 Applications & Interviewing Inquiries - Sample Prohibited Questions YOU CANNOT ASK AN APPLICANT THE FOLLOWING QUESTIONS… Date of birth Date of high school graduation Marital status (in some states) Disabilities Health conditions Pregnancy Prior workers’ compensation claims Who has child-care responsibility Off-duty lawful conduct (in some states) 12 Applications & Interviewing Inquiries - Alternative Permitted Questions YOU CAN ASK AN APPLICANT THE FOLLOWING QUESTIONS… Fact of high school graduation or date of college graduation Ability to perform essential functions of job Ability to travel Ability to work overtime History of criminal convictions, except for marijuana convictions over two years old, with EEOC disclaimer that a “conviction will not necessarily be an automatic bar to hiring.” -See Attachment Number 2 (list of prohibited and permitted questions to ask applicants) 13 Applications & Interviewing Inquiries Job Offers No promises of long-term employment Salary stated in “computational” terms Job Descriptions But make sure they are up-to-date and accurate Orientation/Training Role in the organization Job tasks/responsibilities Supervisors/managers Introduction to workplace policies and practices 14 15 Draft, Implement & Enforce employment policies What Should Or Must Be In Your Handbook… •At-Will Employment Policy •Flexible Disciplinary Rules •Arbitration Policy •Discrimination Policy •Sexual Harassment Policy (must!) (must!) 16 Leaves of Absence – Legally Required Workers’ Compensation (in some states such as California - overlaps both FMLA and CFRA) Alcohol and Drug Rehabilitation (in California) Family and Medical Leave (i.e., FMLA (federal law) and CFRA (CA law) – applicable to employers if they have over 50 employees) ADA/Disability Accommodations Pregnancy Disability Leave* (in some states such as California) 17 Leaves of Absence – Legally Required Military (Federal Law) School Visitation (In California) Jury and Witness duty (Most states) Victims of Crimes (in California) Voting Time (Federal Law) Volunteer Firefighters (Federal law, if over 50 employees) 18 Documenting Absences General Concepts Flexible rules and policies Employer must know reason for the absence Must communicate with employee about time off and memorialize communications in writing Should give employee’s chance to correct any attendance or tardiness issue, in writing 19 Documenting Absences Example 1 When employees mention they (or family members) have a “disability” or “serious health condition” Find out how disability or condition impacts attendance or ability to function Can require info from doctor Can send employee to fitness for duty exam, if unclear DOCUMENT conversation(s) See Attachment Number 3 –(LOA Form) employers with 50 or 50+ See Attachment Number 4 (letter to employee re LOA) employers with less than 50 employees 20 Documenting Absences Example 2 When employee goes on leave and the reason is unclear Point out possible leave of absences available Ask for medical certificate if FMLA Direct employee to company doctor if work-related Require employee to keep providing doctor’s notes 21 Managing & Supervising Employees Communication is paramount Provide feedback when appropriate, bad and good Regular and honest performance evaluations (comments must match the score provided) Use counseling to correct behavior and increase performance, not just document terminations Increased communication = decreased anger Progressive discipline when possible Increased anger is what drives lawsuits 22 Managing & Supervising Employees PERFORMANCE EVALUATIONS Provide snapshot of employee performance – good & bad Acknowledge good performance Inspire better performance Engage in honest and needed dialogue Possibly – use as measure for compensation 23 Managing & Supervising Employees PREPARING PERFORMANCE EVALUATIONS Look at past evaluations – are same issues still present? Check anecdotal notes in file – including e-mails Get input from other managers Review entire year’s performance Be honest! -See Attachment Number 5 (lawsuit by woman laid off) 24 Managing & Supervising Employees GOALS OF COUNSELING AND DISCIPLINE Change employee’s behavior Increase communication Reduce anger Reward good performance Point out and correct problem conduct Not set up for termination! 25 Managing & Supervising Employees HOW TO COUNSEL EMPLOYEES Document verbal warnings with memo to file Provide examples, not just summaries 26 Managing & Supervising Employees EXAMPLE WARNINGS: Don’t Just Say: “Insubordination” Do Say: “In response to your supervisor’s instruction, you threw a wrench on the floor, called him a ______________ idiot, then stormed off the floor midway through your shift. This type of disrespectful, abusive, and insubordinate behavior cannot be tolerated by the company.” 27 Managing & Supervising Employees EXAMPLE WARNINGS: Don’t Just Say: “Bad attitude” Do Say: “You come in every morning, greet no one, and snap off the head of the first person to address you. You antagonize clients, berate co-workers, and slam doors and phone receivers. Your colleagues don’t want to work with you, and clients have complained about your demeanor.” 28 Managing & Supervising Employees EXAMPLE WARNINGS: Don’t Just Say: “Not a team player” or “Doesn’t fit in” Do Say: “Doesn’t volunteer to take on work. Won’t speak to co-workers unless forced to. Refuses to take on overtime. Needs to be more of a self-starter and take the lead on projects, rather than being told the next step.” 29 Managing & Supervising Employees HOW MANY WARNINGS BEFORE WE CAN FIRE? No magic number – whatever necessary to address the issue and allow time to correct Dependent on length of employment, company’s tolerance of the behavior, and how other employees have been treated Especially with longer term employee, written should proceed verbal, and provide detailed final written warning if possible, then mean it! 30 31 31 Issues Upon Termination Pre-termination internal review HR and legal – any issues of concern? Can you fire a female employee who is pregnant, filed a workers compensation claim a few months ago for an injury to her hand and who has disclosed that she intends to go on maternity leave in a few weeks? NO SNEAK ATTACKS – does the employee know this is coming? Are other options preferable – demotion, transfer, parttime? 32 Issues Upon Termination Do I need to tell the employee why we are terminating him/her? 33 Issues Upon Termination Plan the approach in order to reduce the anger Location Timing Messenger Are there security issues? Final pay check (all accrued vacation) 34 Issues Following Termination Watch post-termination references Only HR Only neutral, if possible Watch EDD responses – don’t contradict reason for termination Involve employment counsel at first sign of trouble Obtain signature on a general release of all claims? 35 WHAT MANAGERS AND SUPERVISORS SHOULD KNOW ABOUT WAGE & HOUR LAW NON-PROFIT ORGANIZATIONS ARE NOT EXEMPT FROM WAGE & HOUR LAWSUITS Lawsuits regarding: -unpaid overtime -failure to provide employees with meal and/or rest breaks -inappropriately classifying employees 36 Company Farmer’s Insurance Albertson’s Pacific Bell Radio Shack Rite Aid Corporate Computer Sciences Corp. Bank of America Coca-Cola Bottling Company Automobile Club of Southern CA Starbucks Taco Bell Longs Drug Stores Purdue Farms, Inc. U-Haul Company Iowa Beef Packers Wells Fargo HCA Healthcare 37 Amount Paid $120,000,000 $37,000,000 $35,000,000 $29,900,000 $25,000,000 $24,000,000 $22,000,000 $20,200,000 $19,500,000 $18,000,000 $13,000,000 $11,000,000 $10,000,000 $7,500,000 $7,000,000 $6,000,000 $4,750,000 WHAT MANAGERS AND SUPERVISORS SHOULD KNOW ABOUT WAGE & HOUR LAW What Law Govern Wage & Hour Claims? •Federal Law, Fair Labor Standards Act (“FLSA”) enforced by Department of Labor FLSA” (“DOL”) DOL” •State Law, California Labor Code and Wage Orders enforced by Division of Labor Standards Enforcement (“DLSE”) (“ DLSE” 38 WHAT MANAGERS AND SUPERVISORS SHOULD KNOW ABOUT WAGE & HOUR LAW 39 Exempt vs. Non-Exempt Must meet “salary” test Must meet “duties” test Federal vs. California… …there are many differences 40 Exempt vs. Non-Exempt SALARY TEST: Under FLSA, must receive $455 a week Under California law, must receive salary equal to two times minimum wage, based on 40 hour work week (40 hrs x $8.00/hr) = $640/wk or $33,280/year Computer professionals different – in California, must be nearly $100,000 annually, adjusted every year 41 Exempt vs. Non-Exempt DUTIES TEST: Professional, Administrative or Executive Certain computer related employees Outside/inside sales employees -See Attachment Number 6 42 Exempt vs. Non-Exempt Working Managers: Federal law vs. California – issue regarding “primary duty” duty” Key – In California, cannot spend more than HALF of his/her time on non-exempt functions nonIntake calls, preparing and responding to correspondence, filing, providing customer service, bookkeeping, and data entry ARE NOT exempt duties! Based on actual work duties, not job description! 43 Exempt vs. Non-Exempt Exempt Employee: employee is NOT entitled to overtime compensation and employer need not regulate employee’s rest periods or meal periods Non Exempt Employee: employee IS entitled to overtime compensation and employer MUST regulate employee’s rest periods or meal periods 44 Overtime Rules in California - basic law 1 ½ times employee’s regular rate for hours over eight in a day or 40 in a week, or for the first eight hours on the seventh day of work in a work week 2 times employee’s regular rate for hours over twelve in a day or over eight on the seventh day in a work week 45 Meal Break - basic law Minimum 1/2 hour, unpaid period for employee working at least five hours or more DLSE has interpreted this to mean that an employee cannot work more than five consecutive hours without a meal break Employee MUST actually take the meal period If employee works no more than six hours, meal period may be waived. Need not be in writing, but highly recommended. Employee must be fully relieved of all duties during the meal period 46 Rest Breaks – basic law Ten minute paid break for every four hours worked Need only be made available, i.e. need not force employees to take breaks (unlike meal period!!) 47 What if we were too busy, and nonexempt employee did not receive a meal or rest period? What is the penalty/cost if employee misses the meal or rest period? One additional hour of compensation for each day on which the employee did not receive his/her meal or rest period. 48 HOW MUCH CAN A MISTAKE COST IN COURT? Unpaid overtime or other wages and/or penalties per employee One year for penalties per California Law For wages, three years under Labor Code For four years under Business & Professions Code section 17200 Double damages under FLSA Attorneys’ fees for actions brought in court Cost of defense of the claim 49 SEXUAL HARASSMENT Employment Law 1. Wage & Hour Cases 2. Whistle-blowing/Retaliation Cases 3. Discrimination Cases E.g. Age, Race, Sex/Gender How Harassment Claims Arise Women vs. men Men vs. women Men vs. men Women vs. women One employee vs. several employees Several employees vs. one employee Subordinate vs. supervisor Supervisor vs. subordinate Employee(s) vs. third party Any sexual orientation! 51 QUID PRO QUO SEXUAL HARASSMENT Quid Pro Quo literally means – “this for that” Demand for sexual favors: unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors. 3 Elements: 1. Employee is subject to objectively and subjectively unwelcome conduct or advances; 2. The employee’s reaction or required conduct affects the terms and conditions of employment; and 3. Conduct is based on employee’s sex 52 It would not have occurred but for the employee’s gender, or There is a “sexual” component to the harassment. Hostile Environment Sexual Harassment 3 Elements: 1. The action must be severe or pervasive as to: Alter the conditions of the victim’s employment Create an abusive working environment 2. Objectively & Subjectively Unwelcome (i) objective test: reasonable person, (ii) subjective test: was He/she “actually offended.” 3. Because of Sex/Gender It would not have occurred but for the employee’s gender, or There is a “sexual” component to the harassment. 53 Hostile Environment Harassment Can be composed of: Offensive comments, statements or jokes Gestures Pictures Touching Leering Hugs (e.g. fruit co. in Corona, Ca.) All or one of the above 54 Setting & Respecting Boundaries How do we know when we’ve crossed over someone else’s boundaries? The only boundaries that make sense to us are our own! • People have different thresholds for what they find unacceptable • Hypersensitive people exist. • Cultural differences 55 55 56 56 What is Harassment? Two co-workers tell jokes in the lunch room? A Federal Express delivery person flirts with the receptionist? A co-worker gives a hug? The creepy hug HR’s concerns re “the hugger” Health Care & Retirement Corp. (HCRC), encourages workers to get touchyfeely. "There's so much negativity in the world," says Harley King, the executive who thought up the hugging policy, "we're trying to create an environment in which it's okay to care, it's okay to give of yourself and be open." Home Depot (1) KNOW YOUR WORKPLACE POLICY, (2) RECOGNIZE YOUR WORKPLACE CULTURE AND (3) RECOGNIZE AND RESPECT BOUNDARIES 57 57 Workplace Hugging: Moral of the story Even people who approve of workplace hugging, such as Bill Clinton, often come to regret it. 58 58 True or False – Only the company is liable for harassment The Company If manager or supervisor acted inappropriately or failed to act If company knew or should have known about coworker or third-party misconduct and failed to prevent The Supervisor For own harassment or retaliation The Co-Worker For own harassment 59 59 What is Harassment? An executive comes in on a weekend to view pornography on the Internet? 60 60 TRUE OR FALSE? Most sexual harassment claims settle, so the problem is resolved quickly. Stevens v. Vons 61 61 TRUE OR FALSE? Sexual harassment is a civil, not a criminal offense. 62 62 63 63 What can lead to Hostile Work Environment Sexual Harassment Cases? Relationships in the workplace: A supervisor has an affair with a subordinate. The affair is clearly consensual. Other employees in the office are well aware of the affair. Other women, with whom the supervisor is not having an affair, sue the supervisor for sexual harassment. Do they have a case? Miller v. Dept. of Corrections, 36 Cal.4th 446, 463 (2005). “[W]hen sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment [because] the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’….” 64 64 What can lead to Hostile Work Environment Sexual Harassment Cases? Disclosure: -Severe of Pervasive? -Because of Sex? 65 65 66 66 What can lead to Hostile Work Environment Sexual Harassment Cases? Gender Discrimination? Anchorman: “It is anchorman, not anchorwoman – and that is a scientific fact”! 67 67 68 68 Sexual Harassment? “unwelcome” “severe or pervasive” 69 69 70 70 Why Do Plaintiffs Sue for Discrimination/Harassment Reasons People Sue? The Entitlement Personality The Person Seeking Revenge On: (1) the jerk, (2) the workplace bully or (3) the company The Gold Digger “When the economy is bad, the workload of employment lawyers increases” Real Unlawful Conduct 71 71 72 72 HARASSMENT IS EVERYONE’S RESPONSIBLITY An employee’s responsibilities: Set clear boundaries Respect boundaries Communicate when boundaries are crossed Don’t judge others’ boundaries Report harassment immediately If the company did not know about it, it is not liable Do not tolerate harassment Cooperate with investigation Maintain confidentiality 73 HARASSMENT IS EVERYONE’S RESPONSIBLITY Supervisor’s Responsibilities: Listen to any and all employee complaints Fine tune your radar (always pay attention to what’s going on around you … even in other departments) Make time for employee meetings! Open door policies really do work! There is NO “off the record.” Immediately report any potential harassment and make sure that someone investigates! Keep a supervisor’s file, and use it If you see it, hear it or know about it - do something! 74 75 75 HARASSMENT IS EVERYONE’S RESPONSIBLITY Companies Responsibilities: Employers must take all reasonable steps to prevent harassment: •Harassment/Discrimination Policy •Investigation •Training every 2 years (even non-profits? Yes!) 76 Prompt Investigations Timeliness is critical. Designate one or two people responsible for investigations All complaints, no matter how minor, must be sent immediately to the designated management representative(s) A thorough investigation should include Interviews with all involved parties including complainant, alleged harasser, witnesses and other possible victims Communication to all parties involved of outcome of investigation and corrective measures to be taken Investigation report 77 77 The Investigation: Get the facts – ask whatever questions are necessary to obtain the full story: Assess credibility – Prior complaints about accused Possible motivations of the parties Inconsistent statements Prior conduct Lack of specificity or recollection Timing of the complaint Corroboration 78 78 Determining Proper Remedy: Counseling/Meeting/Policy Reminder Apology (written or personally) Warning Suspension Transfer (of accused or complainant) Demotion Termination Never punish the complainant (in the absence of extraordinary circumstances)! 79 79 NON-PROFITS ARE EMPLOYERS, TOO Thank You for Attending! Have any other questions? 310-282-9400 ext. 437 ygallegos@silverfreedman.com 80