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red for hire sign

It may sound basic, obvious even, but if your nonprofit organization is hiring any employee or independent contractor, you NEED to have job descriptions for each role. And, not just basic job descriptions, but comprehensive overviews of the open position. Be it a position for chief executive officer, marketing manager, or programs director, the advice remains the same.

Job descriptions are in part a legal protection, and in part a primary means for announcing the open position to both internal and external stakeholders which is going to help you find or recruit the best candidates for the organization. If that’s not enough to convince you, consider these four major reasons:

  1. Job descriptions can be used as a basis for objective performance management. It provides both management and employees a shared understanding of the duties of the position.
  2. Job descriptions assist in making sure staff duties align with your organization’s overall mission and vision.
  3. When conducting interviews, job descriptions can, and should, inform the development of interview questions.
  4. Job descriptions can be the foundation of a compensation system that accurately reflects employees’ qualifications and responsibilities in the organization.

woman working on computer

I’m here to assist you and your organization on the legal aspects of nonprofit employment ranging from new hires, to employee handbook, to employment contracts. Don’t hesitate to contact me via email or phone (515-371-6077). We’ll schedule your free one-hour consultation and make a plan to set your organization up for success!

man stretching at desk

For decades, employers enjoyed very wide latitude in disciplining and firing employees for attendance problems, even if the absenteeism was the result of illness or injury. That latitude has been significantly altered since the passage of the Americans with Disabilities Act (ADA) in 1990. Let’s explore how some of the policy implications of the civil rights law play out in the workplace. Don’t forget the ADA applies to nonprofit employers too, and non-compliance is not an option!

ADA Coverage

The ADA protects only “qualified individuals with a disability.” Disabilities as defined under the ADA can mean either physical or mental impairment that substantially limit one or more major life activities. It can also mean an individual who has a record of such an impairment or is regarded as having such an impairment.

 

group of people in line

A qualified individual must be able to perform essential functions of the job, with or without reasonable accommodation. What’s a reasonable accommodation? It may include the following (but is certainly not limited to):

  • Making existing employee facilities readily accessible for use by persons with disabilities
  • Modifications to work schedule
  • Job restructuring
  • Appropriate reassignment to a vacant position
  • Acquiring/modifying equipment or devices
  • Adjusting/modifying examinations, training materials, or policies
  • Providing qualified readers or interpreters

Tension Between ADA and Absenteeism

It can be difficult when an employee is absent for a health reason, and co-workers must pick up the slack, or the work simply goes unfinished. But, the employer risks violating the ADA if the company terminates or disciplines such an employee without first considering whether the employee is a “qualified individual with a disability.” If the answer is yes, the employee does fall under the ADA umbrella, then the employer must consider whether they can reasonably accommodate the employee. An employer is required to make a reasonable accommodation to the known disability of a qualified employee, if it would not impose an “undue hardship” on the employer’s operation. Yet another term that sounds ambiguous at its face, undue hardship is defined as an action requiring significant expense or difficulty with regard to things like the structure of its operation, employer’s size, financial resources, and nature of the industry.

Employers are NOT required to make an accommodation if it would mean lowering quality or production standards. (They’re also not required to provide personal items for use, like hearing aids.)

Of course, not all persons with a disability will need the same kinds of accommodation. Some examples relating to absenteeism include:

  • Abe was diagnosed with cancer and will be absent as he undergoes chemotherapy.
  • Betty has a chronic medical impairment in the form of diabetes and will need to attend related medical appointments in regular intervals.
  • Charlie deals with major depressive disorder, and a recent exacerbation of symptoms means he’ll need time to recuperate.
  • Diana will also need time to recover from surgery for her chronic back condition.

Practice Pointers

To control attendance problems without violating the ADA, you should:

  • Evaluate each situation (that is, whether the employee is qualified, disabled, or whether you can provide a reasonable accommodation) on a case-by-case basis while acting as consistently as possible with past practice and in accordance with your attendance policy;
  • Have a written attendance policy that emphasizes the necessity of good attendance, but also provides you with flexibility that you might need to accommodate a qualified individual with a disability;
  • Maintain accurate records of all absences, including a separate and confidential file for any medical certifications or medical information relating to an employee’s absences;
  • Be aware of the interplay between business/nonprofit policies and state and federal laws; and
  • Call your attorney when you have questions about your duties under the ADA. The saying, “An ounce of prevention is worth a pound of cure,” is smart to keep in mind!

Smart Employers Seek Advice

Again, nonprofit employers, remember the ADA applies to you too! The ADA can be a complex law, and it can get even trickier when trying to accommodate appropriately for absenteeism, while balancing business/nonprofit operations. Know you don’t have to navigate it alone. Questions? In need of counsel? Don’t hesitate to contact me.

Girl holding scary pumpkin

Horrifying. Blood curdling. Hair raising.

These are just a few of the adjectives that can be used to describe six of the scariest things your nonprofit can do (or fail to do). As a lawyer who regularly works with nonprofits, trying to protect nonprofits and help them succeed in pursuing their mission, these six items literally haunt my nightmares.

  1. Failing to have an employee handbook with necessary policies.

Spine chilling!

Seriously? How can you NOT have an employee handbook? An employee handbook (even if you have but a single employee) makes clear the rights and responsibilities of both the employer and employee. So many disputes can be avoided by a clear, easy-to-read, and direct employee handbook.

  1. Merely copying a handbook off the Internet or “borrowing” it from another nonprofit.

Very eerie!

This is about as bad as not having a handbook at all! Just grabbing a random handbook and adopting it as your own makes as much sense as picking up a random hitchhiker on a foggy night. Others’ employee handbooks may have provisions you don’t need, or worse, ones you don’t want.

I once reviewed a handbook for small-but-sincere nonprofit that worked with the homeless. Several times in the handbook, quite specific medical terms came up—there was a HIPPA provision, there was talk about medical certifications, medical training, and proper handling of medical records. I realized, with a shock, this nonprofit had “borrowed” a handbook from a hospital.

How much faith or confidence will employees have in an employee handbook that’s filled with irrelevant stuff that clearly doesn’t apply to them at all? This is scary stuff, folks, very scary stuff.

Scary skeleton skull

  1. Failing to have an appropriate disclaimer in your nonprofit’s employee handbook

Truly frightening!

An employee handbook is just an employee handbook . . . or so you may think. But, what happens when it doesn’t have an appropriate “disclaimer?”

An employee handbook may constitute an employment contract! If you think about it, an employee handbook has all the elements of a contract—it’s written, it’s specific, it “promises” certain things will (or won’t) happen. It’s even “signed” by the nonprofit/company.

So, an employee handbook could actually be considered a unilateral employment contract unless the employer includes an appropriate disclaimer. Make sure you do so.

 

  1. Not having adequate job descriptions

Terrifying!

Job descriptions are so important – for the same or similar reasons that employee handbooks themselves are needed. Job descriptions lay out in writing what is required of employees.

Job descriptions are also helpful in relation to what is now-called the American with Disabilities Act Amendments Act (ADAAA). Job descriptions demonstrate the “essential functions” (as opposed to non-essential) job functions of each position.

Also, strongly consider job descriptions for board members.

  1. Failing to have an acknowledgement page in your nonprofit’s employee handbook

Dreadful!

 

It is critically important your employee handbook include an acknowledgment page that the employee signs and returns. The acknowledgement page should state that the employee understands it is his or her responsibility to both read and follow the policies. The acknowledgement page should be able to be separated from the handbook, so that it can be signed by the employee and saved in the employee’s personnel file.

harvest moon

  1. Not making absolutely clear that your new employee handbook supersedes other, older policies

Ghastly!

Your nonprofit’s new employee handbook must make clear it trumps other, older policies and provisions. The employee handbook needs a “superseding” provision. This provision must state unambiguously this employee handbook is indeed the most up-to-date guidance on your nonprofit’s policies.

 

ghost in coffee mug

Wow, that was super scary!

After writing this post, I probably won’t sleep well tonight. But, if you follow these six pieces of advice you’ll rest easy knowing that you’re more likely avoid the nonprofit graveyard. If you’re facing these spooky scenarios (or any other challenges) don’t hesitate to reach out by phone (515-371-6077) or email to schedule a free consultation.

There are several provisions that just about all employee handbooks should include. Let’s simply cover the top five. There are certainly numerous other important provisions to include in an employee handbook, but these five are critical and provide important protections for employers (both nonprofit and for-profit).

The employee handbook should make it clear it is NOT a contract. The employee handbook needs a “disclaimer.”

Under Iowa law it’s critically important to point out that the employee handbook is just that–a handbook–and not an employment contract. And, the employee handbook should not make any promises about continued employment. Consider using language similar to this:

I understand and agree that nothing in the Employee Handbook creates, or is intended to create, a promise or representation of continued employment and that employment at [Nonprofit/Company] is employment at will, which may be terminated at the will of either [Nonprofit/Company] or myself. Furthermore, I acknowledge that this handbook is neither a contract of employment nor a legal document.

https://www.gordonfischerlawfirm.com/employee-handbook/

The employee handbook should make clear it trumps other, older policies and provisions. The employee handbook needs a “superseding” provision.

The employee handbook should make clear that it includes the most up-to-date guidance on company policies. Wording like this may be helpful:

This handbook and the policies and procedures contained herein supersede any and all prior practices, oral, or written representations, or statements regarding the terms and conditions of my employment with [Nonprofit/Company]. By distributing this handbook, [Nonprofit/Company] expressly revokes any and all previous policies and procedures that are inconsistent with those contained herein.

The employee handbook should make clear it is subject to change. It needs “wiggle room” language.

 

Paperwork on table

The policies in the handbook may well be subject to change. Of course, new issues arise, and you may need to make revisions. Consider using something like the following:

I understand that, except for employment-at-will status, any and all policies and practices may be changed at any time by [Nonprofit/Company], and [Nonprofit/Company] reserves the right to change my hours, wages, and working conditions at any time. All such changes will be communicated through official notices, and I understand that revised information may supersede, modify, or eliminate existing policies.

The employee handbook should make clear that employees are “at will.”

The employee handbook must be unambiguous about employees’ at will status:

Your employment is not for any specific time and may be terminated at will with or without cause and without prior notice by [Nonprofit/Company].

The employee handbook should contain an acknowledgement page.

 

Paper and computer

It is important the employee handbook includes an acknowledgment page that the employee signs and returns. The acknowledgement page should state that the employee understands it is his or her responsibility to read and follow the policies. The acknowledgement page should also be able to be separated from the handbook, so that it can be signed by the employee and saved in the employee’s personnel file. Wording like this might be helpful:

I have received the handbook, and I understand that it is my responsibility to read and comply with the policies contained in this handbook and any revisions made to it.

________________________________________
Employee’s Signature

________________________________________
Employee’s Name (Print)

____________________
Date

TO BE PLACED IN EMPLOYEE’S PERSONNEL FILE


Does your employee handbook contain these five provisions? Why or why not? I’d love to hear from you. Give me a call at 515-371-6077 or email me at gordon@gordonfischerlawfirm.com.