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.

 

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.

 

An Employment Law Lesson Learned by a Gourmet Cookie Company

An Employment Law Lesson Learned by a Gourmet Cookie Company

Most employers know that it is illegal to discriminate in the employment process. Employment discrimination commonly occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, gender, disability, religion, or age, among other factors. It is also against the law to retaliate against an employee or job applicant who makes a claim of unlawful discrimination.

Many employers may be unaware of the law that prohibits discriminating against work-authorized, non-U.S. citizens when verifying their work authorization at the start of employment. The Immigration and Nationality Act (“INA”) prohibits discrimination against individuals who are otherwise authorized to work in the U.S., even if they are not U.S. citizens.

Mrs. Fields’ Original Cookies, Inc. recently learned the hard way that it may not discriminate against non-U.S. citizens when verifying their work authorization for employment. The U.S. Justice Department disclosed in December 2018 that Mrs. Fields had been requiring lawful permanent residents to provide specific documentation to prove their work authorization status, while not imposing that specific documentation requirement on U.S. citizens.

Under the INA, all work-authorized individuals, regardless of citizenship status, have the right to choose which document to present to employers, from a range of valid documents, to demonstrate their authority to work in the United States. In the employment context, work authorization typically arises at the point in the hiring process when an employer needs to verify an employee’s work authorization. This is accomplished by following the guidance under Form I-9.

Although all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment, the INA provides a specific list of acceptable documents evidencing identity and employment authorization. An employer, as Mrs. Fields now knows, may not pick-and-choose what documents it will accept. Rather, an employer must accept any valid authorization document presented by an applicant.

Under the settlement reached with the Justice Department, Mrs. Fields will pay $26,400.00 in civil penalties to the United States and be subject to monitoring and reporting requirements.

What lessons may be learned from the Mrs. Fields experience? First, acknowledge that it is not desirable for an employer to create a recipe for employment verification that differs from the recipe set forth within federal law, to use a baking metaphor. Second, employers should be aware that all U.S. citizens, lawful permanent residents and other work-authorized individuals are protected from national origin discrimination in the workplace. Employers may not request more or different documents than are required to verify employment eligibility, as set forth under the I-9 process, with the purpose or intent of discriminating on the basis of citizenship or national origin. We suggest consulting with your employment law attorney with any questions or for a review of your hiring practices to make sure that they comply with applicable state and federal law.

 

Masterpiece Cakeshop: A Collision Course of Civil Liberties and Religious Rights

Masterpiece Cakeshop: A Collision Course of Civil Liberties and Religious Rights

The civil liberties of gay couples and the religious rights of a Colorado business owner were recently on a collision course. Then, on June 4, 2018, the U.S. Supreme Court found a detour to avoid the collision…at least for now.

The Court held that, in some instances, a balance must be struck between protecting gay persons in the exercise of their civil rights and the rights of a business owner to express his religious-based objection to gay marriage. The majority of the Supreme Court held that the Colorado commission’s treatment of the baker violated Colorado’s duty under the First Amendment not to have laws or regulations that express an overt hostility to a religion or a religious viewpoint. This case is known as the Masterpiece Cakeshop case.

This case is of special interest to human resources professionals and business owners because the same policy intersection could easily arise in an employment context in Wisconsin. Wisconsin has a law similar to the Colorado law that makes it unlawful to give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry. In Wisconsin Statutes § 106.52(3), a person who feels that he or she has been a victim of unlawful treatment under the law may file a claim with the Equal Rights Division of the Wisconsin Department of Workforce Development, the same entity that considers violations under the Wisconsin Fair Employment Act.

In addition, certain Wisconsin employers may have the constitutional protection of the Free Exercise Clause of the First Amendment to the U.S. Constitution. That clause states that “Congress shall make no law . . . prohibiting the free exercise” of religion.

The rights and remedies available to everyone under state and federal law — whether state fair employment or public accommodation laws, or Title VII, the Americans with Disabilities Act, or similar federal laws — often create policy conflicts for employees, employers and businesses in general. The wise HR professional will stay alert to the intersection and potential conflicts that will necessarily arise in the workplace and in the marketplace. For now, the resolution to the underlying policy conflict in Masterpiece Cakeshop between public accommodation rights for gay couples and the religious expression rights of small businesses will need to be addressed another day.

 

Harassment in the Headlines, Employers in the Headlights?

Harassment in the Headlines, Employers in the Headlights?

It is hard to ignore the daily dose of headlines that assert new allegations of sexual harassment or abuse in American society. While the problem of sexual harassment may be analyzed on many levels – personal, societal, historical, cultural, to name a few – sound legal analysis must not be overlooked by employers and employees when considering specific workplace situations.

When sex harassment occurs in in an employment setting, the conduct is likely addressed by Wisconsin and federal law.  Some forms of harassment may suggest criminal repercussions, although many forms of sexual harassment may not be considered a crime, depending on circumstances.

While all bad behavior in the workplace is inappropriate, not all inappropriate behavior may be contrary to state and federal laws.  Inappropriate conduct may not merely be illegal, it may be bad for business, including lowering employee morale.  The Equal Employment Opportunity Commission (EEOC) states that “workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm,” all of which is a drag on productivity.  (Select Task Force on the Study of Harassment in the Workplace; June 2016.)

Given the wide range of sexually inappropriate conduct, it behooves employers and employees to know the law.  Sex harassment is a form of unlawful discrimination based on sex.  Wisconsin defines discrimination because of sex to include implicitly or explicitly making or permitting acquiescence and/or submission to sexual harassment a term or condition of employment.  It is unlawful for an employer to permit conduct that has “the purpose or effect of substantially interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment.”  Substantial interference with an employee’s work performance or creation of an intimidating, hostile or offensive work environment may be established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct to be sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment.  Usually the offensive conduct must be unwelcome for the conduct to be deemed unlawful under Wisconsin law.

Federal law is similar to Wisconsin law.  Wisconsin law applies to any employer with one or more employees; federal law applies to employers with 15 or more employees.

What should employers do to protect themselves against conduct by employees that may lead to harassment complaints?

1. Review your harassment policy to make sure it is up-to-date and has been recently communicated to your employees.

2. Conduct harassment training for management and non-management employees if you have not done so within the past year. The EEOC recommends that the training be live and interactive, if possible, or computer-based and interactive if live training is not possible.

3. If applicable, conduct appropriate harassment training for your organization’s board of directors.

4. Analyze whether your organization has been unintentionally tolerating or ignoring an employee who has a reputation for engaging in inappropriate behavior.

5. If the allegations of inappropriate behavior or harassment in your organization are widespread or involve someone high up in the organization, consider outside legal counsel to assist with your investigation. Outside counsel will be able to help you analyze legally sound investigation techniques and what, if any, remedial action should be taken.

In conclusion, it is important to recognize that bad behavior is bad for business, whether or not the conduct is against the law.  Consult with your legal advisor to review whether your harassment policies are up to date and whether key employees in your company should have moral turpitude clauses added to their employment agreements (when there are such employment agreements) to assist the employer in terminating employees who are behaving poorly, even if their conduct does not rise to the level of unlawful harassment under state or federal law.  Seek legal advice promptly if you suspect behavior that may violate state or federal harassment laws.

 

Wisconsin Fair Employment Act & the ADA

What can Wisconsin Employers Learn From an Employer in Churubusco, Indiana (Pop. 1,800)?

Wisconsin employers should be aware of the root cause of a lawsuit that led to a settlement between the U.S. Equal Employment Opportunity Commission (EEOC) and an Indiana employer. The EEOC is the federal agency that enforces the Americans with Disabilities Act (ADA). Like the Wisconsin Fair Employment Act, the ADA provides certain protections to employees with disabilities.

The EEOC started a lawsuit against an Indiana employer that resulted in a settlement that requires the employer to pay a job applicant thousands of dollars. The employer is located in Churubusco, Indiana, a town with a population of about 1,800 people.

According to the EEOC’s lawsuit, the job applicant, an experienced and qualified machinist, applied and interviewed for a machinist position. Upon completion of the interview, the employer extended a job offer conditioned on the applicant passing a physical exam. The employer later withdrew the offer because the exam report disclosed a possible vision impairment related to a congenital eye condition. During the litigation process, the parties’ expert ophthalmologists agreed that the job applicant had normal vision.

The EEOC maintained that withdrawing a job offer based on unsubstantiated stereotypical beliefs about a medical condition violates the ADA, which prohibits discrimination based on disability or perceived disability. The EEOC filed suit in federal court to prove its point.

The EEOC and the employer reached a consent decree in March that requires the company to pay the applicant $35,000. The employer also agreed to require its human resources supervisors, managers and business unit managers to attend a training seminar on disability discrimination. The employer must also maintain a disability policy, post a notice informing employees that federal law prohibits discrimination, and report to the EEOC over a five-year period in instances when it withdraws a job offer based on the results of its post-offer physical exam.

“This settlement demonstrates that all employers, even those who are the main employer in a small town, must abide by federal anti-discrimination law,” said Kenneth L. Bird, regional attorney of the EEOC’s Indianapolis District Office.

What are the lessons for Wisconsin employers?

  • First, be aware that even employers in small communities are not beyond the reach of the EEOC.
  • Second, know that both federal and Wisconsin law set guidelines against discrimination based on disability, perceived disabilities and stereotypes of disabilities in the workplace.
  • Third, although post-offer physical exams are allowable in many instances, withdrawal of an offer because of a perceived disability may violate federal or Wisconsin law.
  • Fourth, it is important that those responsible for hiring decisions are fully trained and knowledgeable about federal and state laws that affect hiring practices in the workplace.

For more information, contact your Anderson O’Brien attorney for an in-depth analysis covering compliance with all employment-related laws.

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