Best Practices for Using Volunteers in Your Wisconsin Non-Profit.

Best Practices for Using Volunteers in Your Wisconsin Non-Profit.

The great majority of work performed by non-profits comes from unpaid volunteers. While volunteers can be vital to helping a non-profit reach its goals, their presence raises certain risks that leaders of non-profit organizations should be aware of to craft effective policies for their recruitment, management and retention.

The typical non-profit organization in Wisconsin is simultaneously subject to two sets of laws. The entity is organized under state law, specifically Chapter 181 of the Wisconsin Statutes, titled “Nonstock Corporations.” However, an organization’s tax-free status is controlled by federal law, specifically Section 501(c)(3) of the U.S. Internal Revenue Code, which generally requires the organization be operated for the sole purpose of pursuing one of several listed causes recognized as deserving tax-free treatment. The many requirements of these laws are beyond the scope of this article, but they affect certain aspects of volunteer management practices.

Recruitment:

Before you can manage your volunteers, you must recruit them. Consider how potential volunteers are screened and appropriate policies are put in place. A bad fit can be more trouble than they are worth, and someone with bad intent or ulterior motives can be disastrous both to the organization and to the cause it is trying to help. Outside of the damage an ill-intended individual can cause directly, bad press from being associated with that person can do lasting damage to an organization’s reputation.

The screening process can be as simple as an application form and/or interview asking relevant questions. A more thorough screening may also include background checks. The extent of the screening process should be commensurate to the level of trust that will be placed in that person. Volunteers entrusted with responsibility over expensive goods which can be stolen or vulnerable people who can be abused should be screened with extra caution. These concerns must be balanced with making volunteering as simple and easy as possible, so volunteers do not lose interest when faced with a daunting application process.

During recruitment, take steps to ensure no improper biases or discrimination are applied to volunteer selection. Discrimination against protected classes is generally illegal, even for non-profits. Among the classes protected by anti-discrimination laws are: age, sex, religion, national origin, race, disability or genetic status. Many of these laws are written with the employment context in mind, but there is legal precedent for their application to unpaid volunteers in certain circumstances. Although the law is unclear in many cases, the safest route is to assume anti-discrimination laws will apply. Some types of organizations have limited exceptions to these rules. For example, religious organizations have a narrow window allowing discrimination on the basis of religion. Discrimination laws are complex and you should consult with an attorney if you believe a decision or practice could potentially expose the non-profit to legal action. Even if a form of discrimination is technically allowed under current law, an organization known to discriminate against certain groups may lose moral credibility, which can translate to reduced donations. Additionally, the non-profit risks losing out on federal funding or contracts.

Another concern with incoming volunteers is their classification within the organization itself. Non-profits in Wisconsin can either have members or not have members. If you are unsure whether a non-profit has members, the Articles of Incorporation filed with the State of Wisconsin will indicate the classification. If an organization has members, they may have voting and other rights to control the organization. If the non-profit is a member organization, be careful to be clear who is a member with these rights, and who is a volunteer.

Training and Supervision:

Once a non-profit has recruited volunteers, they must be trained and supervised to perform their duties. A volunteer orientation process promotes consistent training among volunteers and can ensure vital information is passed to everyone working on behalf of the organization. Key policies and procedures, as well as a mechanism for volunteers to get answers to any questions that may arise during the course of their duties, should be implemented and addressed. While certain training procedures should be uniform across all volunteers, job specific training should also be given based on the task the volunteer will be performing. Job duties may change over time, so updates and refresher training will likely be necessary, even for frequent volunteers.

In addition to initial training, a volunteer handbook can serve as a reference for important procedures and rules for volunteers. Detailed handbooks can also help protect the organization from liability should a volunteer do something against the organization’s policy. Some things a volunteer handbook should include are: non-discrimination and non-harassment policies, confidentiality rules, policies and permission statements for information and images of volunteers in promotional materials, policies for working with certain vulnerable groups, attendance, scheduling, conduct expectations and emergency procedures. This list is non-exhaustive and most non-profits will have unique policies to address their specific functions and organizational structure. It is important the handbook reflect current practices for the non-profit. Thus, it should be reviewed and updated regularly. Changes should be identified to existing volunteers so they are aware of the new expectations and they should be provided with the new handbook.

As discussed in the above “Recruitment” section, a non-profit should exercise care to avoid discrimination against or by volunteers. Monitor both supervisors and other volunteers for signs of discrimination or harassment. Harassment can include continuous jokes or jeers directed at a volunteer’s expense, or otherwise creating a hostile environment for them to perform their volunteer duties. Outside of legal concerns, not allowing such behavior can help keep volunteers eager to return and be productive in their duties.

Liability Protection:

When a volunteer makes a mistake, becomes injured, or otherwise takes action which gives rise to a legal claim, there are two major sources of protection for the organization and the volunteers themselves: state law and insurance.

In Wisconsin, a volunteer who provides services to a non-profit has limited liability under state statutes for damages arising from their acts as a volunteer, subject to certain exceptions including, but not limited to, violations of criminal law, willful misconduct if they are also an employee of the non-profit, or if the act was in their capacity as an officer or director of the organization.

Given the long list of exceptions, it is safest to procure insurance. Insurance also can help pay for the expenses of a volunteer who is injured while performing their volunteer duties. Many organizations purchase volunteer liability coverage to protect themselves and their volunteers from the costs of personal injury or property damages stemming from their volunteer duties. Auto insurance should also be considered if the volunteers will either be driving or riding in a vehicle as part of their volunteer duties. Wisconsin has minimum insurance requirements for all drivers, but these amounts are not nearly enough to cover expenses incurred in all but minor accidents.

Incentives:

By definition, volunteers should not expect payment in return for their services. Regardless, many non-profits desire to reward their loyal volunteers with some token of appreciation for their hard work. This can create issues with accidently classifying the volunteers as “employees,” or with the tax-exemption of the organization under federal law.

The tax-free status of an organization can be revoked if the organization is providing a “private” rather an “public” benefit. This can happen if monetary or other valuable rewards are given to volunteers. Likewise, the classification of a volunteer versus an employee is in part based on whether they receive anything in exchange for their work. Non-cash benefits to volunteers are allowed to a point, but beyond this hard to define threshold, problems can quickly accumulate. One thing is clear, avoid giving cash or gift cards to volunteers if the non-profit is looking for ways to reward its volunteers.

The laws regarding volunteering and Wisconsin non-profits can be complex and you should consult with an attorney if have questions about recruitment, training and supervision, liability protection and incentives for your non-profit.

 

Flood Damage – Is Your Home or Business Covered?

Flood Damage – Is Your Home or Business Covered?

Flooding is the nation’s most common natural disaster, which causes billions of dollars in damage each year. Just one inch of water can cause $25,000 in damages to your home. Flooding can result from natural disasters such as hurricanes, excessive rain, or events such as excessive snow melt and rising water levels in rivers and lakes due to ice dams or snow melt. Wisconsin was hit hard by flooding as a result of excessive snow melt in early Spring 2019, and many residents contacted our firm to address potential recovery under their insurance policies.

Unfortunately, the fact is, regardless of whether the flooding at your home or business is a result of a natural occurrence, most homeowner’s and business insurance policies do NOT provide coverage for flooding. Additionally, sewer backup or sump pump overflow is not covered by a standard homeowner’s insurance policy or by flood insurance. This type of coverage must be purchased with a special endorsement on your homeowner’s policy.

Those who live in areas that are at high risk for flooding, based upon government flood zone maps, may be required to obtain flood insurance as a condition of receiving a mortgage from a federally regulated or insured lender. Even if federal law does not require it, a lender may still require that you possess flood insurance. If you live in a high risk area, you may be able to purchase a policy through the National Flood Insurance Program (NFIP) through the Federal Emergency Management Agency (FEMA).

If you live in a low risk flood zone or in areas that typically have a low risk for flooding, flood insurance is not federally required. However, flood insurance may still be worth considering, because over 20% of flood insurance claims come from outside the high risk areas. You will need to check with your insurance agent whether it is possible to purchase flood insurance through a private insurance company or if your community participates in the National Flood Insurance Program where flood insurance policies should be available for purchase. Based upon the web site www.fema.gov, both Stevens Point and the Village of Plover, the area in Wisconsin our firm is located, are communities which participate in the National Flood Insurance Program.

How much flood insurance coverage is typically available through a flood insurance policy? In a one to four family residence, there is typically $250,000 in coverage for the structure itself and $100,000 for the contents. For a business, there is typically $500,000 for the structure and $500,000 for the contents.

There is typically a 30-day waiting period from the date you purchase the flood insurance policy before your policy goes into effect. Therefore, you cannot afford to wait until an imminent threat of flooding before you purchase flood insurance to protect yourself. Additionally, if you have flood insurance, make sure that you do not let your policy lapse, as that will cause you to lose coverage and you may not be in compliance with the terms of your Mortgage Agreement if your lender requires flood insurance.

For more information on which private companies sell flood insurance and to learn additional information on other questions you may have about the National Flood Insurance Program, please check out the following website: www.floodsmart.gov. Another resource you may wish to consult is the Wisconsin Office of the Commissioner of Insurance: www.oci.wi.gov. These are valuable resources that can lead you into the right direction as you consider protecting your home or business from flooding in the future.

 

In Spite of the Law

In Spite of the Law

The law, to borrow a quote from Winston Churchill, “is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key.” That “key” is often found in the Wisconsin Statutes which is affectionally referred to as the book of surprises.  Hence, when faced with the proverbial question of whether “fences make good neighbors” it made sense to scour the Wisconsin Statutes for an answer. Behold!  Such a timely question has an answer and it is: not necessarily. Wisconsin law prohibits the construction of spite fences. In the words of the legislature:

“Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance. However, nothing herein contained shall limit the right of a municipality to forbid the erection of a fence less than 6 feet in height.”

Spite fences were not always held in such low esteem in this great State. Circa 1900, from the quaint village of Glenbeulah, Wisconsin comes the case of Metzger v. Hochrein. The Court described Metzger’s property as “surrounded by made lawns and yards, making an attractive and valuable home.” Standing accused of erecting a spite fence, Hochrein set “rough” tamarack posts, from eight to sixteen feet high along the border between the properties. Making things worse, the Court described that between these posts was a “tight board fence of rough, old, unsightly, and partly decayed lumber from an old ice house.” Ignoring the adage to love thy neighbor, the Wisconsin Supreme Court dismissed the case. In language that seems whimsical today, the Court endorsed the right to annoy one’s neighbor:

“This is one of the many cases that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the annoyance of others, not causing actual, material physical discomfort to them, for which there is no punishment, except loss of that respect which every right-thinking man desires from his neighbors, and the possession of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is supposed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own property, to use it as he may so far as that use does not physically extend outside his boundaries to the detriment of others, may be so exercised as to violate the moral obligations which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious.”

However, the unbridled ability to irritate neighbors did not last long. In 1903, an early version of the spite fence statute was passed in reaction to the Supreme Court’s decision in Metzger v. Hochrein. Now, some modern examples help us understand the mash-up of words contained in the spite fence statute. For an example from Utah, would a “Redneck Stonehenge” consisting of three old cars upright in the ground, erected after a neighborly dispute constitute a spite fence? The answer in a word – yes!  Closer to home, a Wisconsin appeals court in the case of Apple Hills Farms v. Price found that an “exposed thirty-two feet long, twelve feet high bare concrete wall” near a property was a spite fence. The facts of the Apple Hills Farms’ case provide a textbook definition of spite. Price, the erector of the wall, told the contractor building the wall that he wanted the wall “ugly” to devalue his neighbor’s property. Surely, it did not help his case that he sprayed grass killer on his neighbor’s lawn to spell “A-hole.” Price’s spite bit him back in the end when the court ordered that he pay his neighbor $150,000.

Upon reflection, the law may not be able to answer the question of whether fences make good neighbors, but it shows that at times, fences certainly make spiteful neighbors. To close, Robert Frost’s poem “Mending Wall” fittingly contains the following contemplative prose: “Before I built a wall I’d ask to know what I was walling in or walling out, and to whom I was like to give offense.”

 

The Fragrance of Reasonable Accommodations and Settlements, EEOC Style

The Fragrance of Reasonable Accommodations and Settlements, EEOC Style

All Wisconsin employers likely are aware of the requirement to dialogue with a disabled employee about whether a reasonable accommodation would assist the employee to effectively perform the essential functions of the job.

While the requirement is well-known, applying it to a specific fact situation can prove challenging because what is reasonable or effective will necessarily vary from situation to situation.

Bath and Body Works, LLC, a national chain with more than 1,600 retail stores selling a range of home fragrance products, learned the hard way that there are differences in opinion with respect to whether an accommodation is reasonable under the circumstances. Bath and Body Works will pay over $38,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission.

According to the lawsuit, a Bath and Body Works store in Minnetonka, Minnesota refused to supply a reasonable accommodation to a lead sales associate with type-1 diabetes suffering retinopathy. The employee asked for a larger monitor screen for the cash register, but instead, the manager purchased an inexpensive, hand-held magnifying glass.

The EEOC maintains that the manager’s conduct violated the Americans with Disabilities Act, which requires an employer to provide employees and applicants with a reasonable accommodation for a disability, unless it causes the employer an undue hardship.

The EEOC then filed suit in federal court. Under the ensuing consent decree that settled the lawsuit, Bath and Body Works will pay the employee $38,000 and is required to adopt district-wide policies to prevent future violations of the ADA.

What is the lesson for employers and employees? An employer should be aware of and have access to past cases and how the “reasonable accommodation” rule may be interpreted by the EEOC and the Wisconsin Equal Rights Division (the state counterpart to the EEOC) in a given matter. Both employers and employees should know that an accommodation is not reasonable merely because it is requested by an employee. Rather, the accommodation must be effective and not pose a hardship to the employer. In the Bath and Body Works case, it is apparent that the EEOC viewed the purchase of a magnifying glass for the disabled employee as a failure of the employer to meet its duty of reasonable accommodation under the ADA. For further assistance in assessing what a reasonable accommodation may or may not be, contact your employment law attorney.

 

Children Moving Out?  Make Sure They are Still Insured

Children Moving Out? Make Sure They are Still Insured

Often families with teenage drivers living at home do not have those teenage drivers listed as named insureds on the auto insurance policy.  Frequently, Mom and Dad are the named insureds on the insurance policy and all the vehicles are listed, and the teenagers qualify for coverage by virtue of being related to Mom and Dad and living in their home.  This type of familial relationship coverage for the teenage drivers usually has a special term of art in the insurance policy, such as “resident relative,” “member of same household” or “resident of your household.”

While each insurance company defines their terms differently, generally speaking, this type of familial coverage means that drivers who are living with their parents qualify for insurance coverage even though they are not the “named insureds” on the auto insurance policy.  This type of coverage is usually defined as a person related by blood (or adoption) to the named insured and living with the named insured; some insurers may limit this category to minor children only, but others may include adult children as well.

The reason this topic is being raised, is that sole reliance on resident relative coverage can create potential problems when that child moves away from home (goes to college or armed forces) or splits time between two homes (divorced parents).  Hopefully, a hypothetical will illustrate.

Billy is a hypothetical 18-year-old high school senior living with Mom and Dad.  The family has a hypothetical auto insurance policy that lists Mom and Dad as the named insureds and covers both of the family vehicles.  While Billy is not a named insured on the policy, by virtue of being related by blood to Mom and Dad and living in the same household with them, he qualifies as a resident relative insured, even as an 18-year-old.

Billy graduates from high school and goes off to college in another city; he is no longer living with Mom and Dad, nor is he listed as a named insured under any other auto insurance policy.  While at college, Billy gets injured in a terrible auto wreck while riding in a friend’s car.  Unfortunately, the at‑fault driver does not have sufficient insurance (or worse, no insurance at all) to cover Billy’s extensive injuries and damages.  However, Billy and his parents think that Billy should have underinsured motorist coverage available to him under Mom and Dad’s auto policy.

The problem is, Billy may no longer qualify as an insured under Mom and Dad’s auto policy.  Billy was never a named insured, the crash did not involve Mom and Dad’s cars, and Billy may no longer qualify as a resident relative.  Because Billy was not living with Mom and Dad at the time of the car crash, he may not qualify as a resident relative anymore.  Whether Billy qualifies for coverage under Mom and Dad’s policy will depend on the policy’s definition of resident relative and Billy’s precise living situation at the time of the wreck.  Had Billy completely moved out or did he leave his furniture and personal belongings at home?  Where was he getting his mail, or what was his voting address?  Regardless of the facts, by virtue of no longer living under the same roof with Mom and Dad at the time of the wreck, the insurance company will likely argue that Billy does not qualify as an insured.

You and your family, can avoid being left in this limbo by making sure your children who are leaving and not getting their own auto insurance are specifically listed as named insureds on your auto policies.  That way, if they are injured in a car wreck, they can have the benefits and protection of the uninsured and underinsured (if underinsured was purchased, and it should be purchased) coverage.

 

Who Pays Medical Bills Before a Settlement?

Who Pays Medical Bills Before a Settlement?

If you are involved in a motor vehicle accident, you probably have many questions, including questions about how your medical bills will be paid. If you were injured in a motor vehicle accident due to the negligence of another person, you may recover your medical bills through a lawsuit. However, it may be months or even years before you receive a settlement or judgment from the negligent driver and his or her insurance company. In the meantime, you need to ensure that your medical bills are covered. How those bills are paid will ultimately affect your recovery.

The first place you will want to look for insurance coverage for medical bills is your own automobile policy. Many drivers are unaware that their automobile policy may carry a certain amount of coverage for medical bills arising from an automobile accident. This amount is usually minimal, but every bit helps. If you reach a settlement with the negligent driver’s insurer, your automobile insurer generally is not entitled to be refunded for the medical bills it paid unless and until you are made whole by the settlement – meaning that you are fully compensated for all elements of damage. In most cases, a negotiated reduction is reached to avoid a separate mini-trial on this issue.

The next place you will want to look for medical coverage is your own health insurance. If you have health insurance through an employer-sponsored plan that is fully-funded by the employer, you may have to pay that health plan back all of the amount it paid for your medical bills regardless of whether you are made whole. These plans, referred to as self-funded ERISA plans, are governed by federal law, which preempts state law concepts such as the made whole doctrine. Some of these plans, however, are insured by a third party. An experienced lawyer will know to research the plan to determine whether it is insured or self-funded and whether arguments can be made in an effort to reduce the amount you are required to refund the plan from your settlement.

Finally, if you are insured through Medicare, the federal government has established a specific formula to calculate the amount that must be refunded. That formula is based on the amount of the settlement or judgment and the amount of legal fees and costs associated with achieving it.

Before resolving any case, it is always important to know what your payback obligations are to third parties that paid for medical bills related to the accident. Having an experienced lawyer involved gives you the benefit of determining what these payback obligations are and how to negotiate reductions where possible to account for the time and effort you and your counsel spent to recover from the negligent party.

 

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