Employment

Checking Up on Work Applicants

Print Friendly, PDF & Email

 Each summer, thousands of volunteers join with employees at youth-centered nonprofit organizations – running sports camps, leading Vacation Bible School programs, and providing childcare.  Throughout the rest of the year, nonprofits regularly rely on both paid staff and volunteers as the bedrock of their religious, educational, and charitable programs.  Before serving in these positions, many applicants consent to background checks – perhaps by signing an application with only a sentence-long disclosure or by checking a box to mark their assent.  Although these background checks may appear to be simply another administrative step, they are an important element for nonprofits to minimize liability and to make wise hiring decisions.  What background checks are warranted, and how should a nonprofit proceed in carrying them out?  This article explains key distinctions and provides important guidance for handling background checks.

Criminal Background Checks

Criminal background checks are integral for hiring employees and selecting volunteers to work with children or other vulnerable populations.  An organization may be held liable under a "negligent hiring" or "negligent retention" legal theory for harm resulting from a person for whom a criminal background check was warranted but not performed.  Accordingly, nonprofit leaders should consider conducting background checks on a broad scope.  Background checks may vary in terms of time (how many years to check), geography (which states to check, federal checks), and cost, so organizations should follow discernible “industry standard” guidelines as much as possible.   

Employment

Clients rely on our firm to work through the myriad employment issues that arise in the daily operations of a nonprofit.  We enable nonprofits to maximize their workers’ contributions and minimize potential legal exposure for liability.

End of IRS’s Health Insurance Reprieve?

Print Friendly, PDF & Email

Since the Affordable Care Act (ACA)’s enactment, the IRS and the U.S. Department of Labor have delivered a rather unpleasant surprise to many, namely, that it now treats employers’ reimbursement or payment of employees’ individual health insurance premiums as taxable income to such employees (also known as health reimbursement arrangements or “HRAs”).  This new rule, which essentially is an interpretation of “plan” under the ACA’s so-called market reforms, applies to small employers that are otherwise exempt under the ACA.  The interpretation constitutes an about-face from the longstanding treatment of HRAs as a pre-tax employee benefit.

Transitional relief was granted when the IRS issued a notice in early 2015, providing that employers who provided such pre-tax benefit would not owe any penalties or be required to include such benefit as taxable income – at least through June 30, 2015. Such relief was extremely helpful (even though quite late), since the penalty for noncompliance is extreme: $100 fine per employee, per day (!).  

At this point, no further tax relief for HRAs is on the horizon.  Legislative rumblings of relief developed earlier this year but failed to produce any helpful result.  Now that the U.S. Supreme Court upheld the ACA’s federal subsidy programs in its recent King v. Burwell ruling (and therefore its core elements), perhaps legislators will focus again on modifying such ACA aspects as this HRA issue.   Instituting such relief would be both consistent with the fervent opposition of many politicians and greatly welcomed by many. 

Religious Liberty After Obergefell v. Hodges

Print Friendly, PDF & Email

Now that that Supreme Court has determined that “[t]he Fourteenth Amendment requires a State to license a marriage between two people of the same sex,”[1] how will the Court’s decision impact religious organizations and individuals?  According to the four dissenting justices, the ruling means trouble ahead for religious organizations and individuals with conflicting religious beliefs.  In particular, the ruling portends new court battles between their constitutional religious liberty interests and developing laws that provide increasing sexual orientation and gender identity (“SOGI”) protection in areas such as employment, education, facility usage, and housing.

In Obergefell, a majority of five Justices determined that same-sex couples have a “fundamental right to marry,” arising out of liberty protections under the Due Process and Equal Protection clauses of the Fourteenth Amendment.  In so ruling, the Court reversed the Sixth Circuit Court of Appeal’s ruling[2] that states may define “marriage” as they wish.  Instead the Court sided with other federal courts that ruled unconstitutional state laws that limited marriage to unions between one man and one woman.    

Speaking for the majority, Justice Kennedy only briefly touched on religious liberty considerations, saying, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  Notably, there was mention of neither religious exercise, as guaranteed under the First Amendment’s free exercise clause, nor broader protections to be recognized for faith-based organizations beyond churches.

Mandated Reporter Essentials

Print Friendly, PDF & Email

With summer on the horizon and many nonprofit organizations gearing up for youth-centered activities, nonprofits that serve children need to help their paid staff and volunteers understand applicable mandatory reporting requirements.  While there has been a general downward trend over the last 20 years, sadly the problems of child abuse, neglect, and sexual abuse remain pervasive.  In 2013, there were 3.1 million reported incidents, an estimated 679,000 victims, and 1,520 child victims died.[1] Both state and federal governments have enacted statutes that require certain individuals to report suspected incidents of child abuse and neglect.  The reporting obligations are thus critical for protecting children. 

By way of historical background, the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974 grants the U.S. government broad powers to “protect the interests of children and intervene when parents fail to provide proper care.”[2] CAPTA provides funding to the states to help prevent and treat victims of child abuse and neglect.  The grants are contingent upon the state implementing laws and programs that mandate certain individuals to report incidents related to child abuse and neglect.[3]

The federal funding incentive worked; all fifty states have implemented mandatory reporting statutes.  The Illinois legislature enacted the Abused and Neglected Child Reporting Act (ANCRA) forty years ago.  Since then, the Act has been amended several times and now lists over forty professions required to report suspected cases of child abuse and neglect.  In May of 2015, the Illinois Department of Children and Family Services revised its Manual for Mandated Reporters, available here.  The manual lists who must report, when they must report, and how to make a report. 

Better Together: Washington State Expands Self-Insurance Risk Pools to Nonprofits

Print Friendly, PDF & Email

 Insurance can be expensive, but not having insurance is sometimes even more costly!  One solution within many industries is risk pooling – that is, to join with others and effectively self-insure together, thereby spreading out risk and bringing down overall costs for protecting property and against liability.  The insurance industry itself, however, is highly regulated and therefore requires state authorization for such programs.  State-authorized self-insurance risk pools seem to be gaining traction in the nonprofit sector, with Florida, California and Washington State leading the way.  

Keeping Track: The importance of HR documentation policies

Print Friendly, PDF & Email

Despite their altruistic purposes, nonprofits generally face the same human resources (HR) problems common to for-profit organizations.  For example, sometimes they need to terminate an employee’s position – perhaps for work performance issues or lack of funding.  Many laws, however, protect employees against termination for the wrong reasons, such as age, gender, or racial discrimination.  A claim of employee discrimination can be extremely costly, time-consuming, and otherwise detrimental to any employer.  Consequently, to avoid such problems, it is crucial that nonprofit employers not only establish good employment documentation protocols but also have effective document retention policies.  Failure to observe proper HR document protocols may expose the organization to legal risk when it becomes necessary to terminate an employee. 

Documentation Can Save the Day

Consider the following case, decided this month:  A nonprofit fired an employee forattendance issues, inappropriate behavior, unsatisfactory performance, and insubordination.  The nonprofit asserted that the employee failed to timely complete required paperwork, used his personal computer to process client information in violation of the nonprofit’s policy, arrived at work late, left work early, and logged more absences than the nonprofit’s policy authorized.  The employee sued on the basis of age discrimination.[1]

Under the Age Discrimination in Employment Act of 1967 (ADEA), it is unlawful for an employer to discharge an employee who is at least 40 years old because of the employee's age.[2]  In this particular case, the plaintiff claimed that the nonprofit’s executives were biased against older workers.  He testified he had overheard a conversation between supervisors, during which someone said: “When they get old, they should get out of here.  I don't know why they would stay.  I don't know why they won't retire and just go.  I don't know why they would want to stay.”  The plaintiff contended this conversation occurred at least three times.  These statements, he claimed, were direct evidence of age discrimination, and that the employer’sstated reasons for discharging him were mere pretext for its discriminatory actions. The plaintiff claimed there was no documented evidence of misconduct or poor performance in the months preceding his discharge.

“Ministerial Exception” Upheld in Campus Ministry Context

Print Friendly, PDF & Email

Are campus ministries exempt from anti-discrimination employment laws, with respect to their religious leaders?  The federal Sixth Circuit Court of Appeals has emphatically said, “Yes.”  Its decision expands application of the “ministerial exception” doctrine that protects faith-based organizations from certain discrimination claims.  The decision also raises important questions concerning judicial application of the doctrine.

1.         Background to the “ministerial exception” – religious exemptions from certain discrimination laws.

Clergy Discipline – What May Be Disclosed to Others?

Print Friendly, PDF & Email

Most issues within churches and other religious institutions typically stay within such organizations as their own business.  But what happens when a pastor or other spiritual leader engages in misconduct or otherwise demonstrates unfitness for such religious leadership?  May the religious organization’s governing leaders share these shortcomings with others? 

Pages

Subscribe to RSS - Employment