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4 Ways to Show Your Nonprofit Employees That You Care This Holiday Season

We’ve all heard the narrative of the overworked nonprofit employee, who prioritizes their organization’s cause to the point of personal burnout. It’s true that burnout is common in the nonprofit sector, and during the holiday season it’s even more likely, with travel, familial responsibilities, last-minute gift shopping, and tight budgets on the minds of many.  Add in other stressors like an increased workload as a result of co-workers taking time off and children who are out of school, and you’ve likely got one exhausted employee.

Unfortunately, high levels of stress often lead to decreased productivity, absenteeism, and workplace accidents. So how does your nonprofit keep its employees engaged when they’ve got so much on their minds, and you’ve got a budget to adhere to? Rather than continuing on with business as usual, try celebrating the holidays by celebrating your employees! Below are four cost-effective ways to boost morale and show your employees that you care this holiday season.

1. Plan a Holiday Party

A holiday celebration gives employees something fun to look forward to, and it doesn’t need to be expensive! A holiday party can be anything from an all-staff dinner at a local restaurant to something as simple as a shortened workday followed by a potluck. There are also many alternatives to the traditional office party, including an ugly sweater day or even a white elephant game.

2. Show Flexibility with Scheduling

While it may not always be possible, showing your employees some flexibility during the chaotic holiday season can have a major effect on their stress levels. If staffing permits, choose a day to allow employees to leave a little early, or show greater flexibility with regard to time-off requests. Your employees will appreciate the consideration when it comes to their busy schedules, and the extra time can contribute to a better work-life balance.

3. Give Out Personalized Cards

Personalized thank you cards written out to each employee are a great way to show that you care without spending a lot. Just letting your employees know that you appreciate them each individually, enough to write and give them a card, speaks volumes.

4. Organize a Staff Volunteer Effort

Volunteering during the holidays is a great way to feel good and to make a difference in the community, bringing the focus of the holidays back to those that are less fortunate. Try organizing a volunteer effort separate from your nonprofit’s cause, such as a food or gift donation drive. You could also organize a half-day away from the office to spread holiday cheer at a local homeless shelter or hospital. Getting out of the office and doing something good as a group not only boosts morale, but it’s also great for team building!

While we like to think of this time of year as happy and joyous, it can often be stressful too. Showing understanding and taking steps to demonstrate that employees are both seen and appreciated goes a long way.

Does My Organization Really Need an Employee Handbook?

Despite the fact that there are no state or federal laws that require an employer to have and provide handbooks to their employees, it’s almost universally agreed that having and using a well-drafted, comprehensive, and easy to understand handbook serves a number of legal, practical, and risk preventative purposes, and nonprofits are no exception.

Ideally, handbooks not only provide clear and specific information on a large number of important topics to employees, about both their employment and their employer, but they also provide specific notices to the employee about their rights. These often include rights to any job-protected leave, communication of zero-tolerance policies, information on employee benefits, and much more. If applicable, the handbook is also used to establish and clarify the at-will nature of the employment relationship, performance and disciplinary expectations, and policies on vacation and holiday benefits.

However, even well-crafted handbooks can be victims of the passage of time, as well as changes that take place in the law and in the workplace. Regulatory and legislative action can change what an employer is required to do with regard to their employees — often without time to adequately prepare for that change. In their efforts to remain compliant with these changes, employers should be prepared to revise and update any applicable policies in their handbook to reflect new legal realities.

Similarly, if an employer has always had fewer than 50 employees and later increases their workforce to 51 employees, they would then become subject to a number of new laws. The best example would be the fact this employer, who once was not subject to the Family Medical Leave Act (FMLA) leave laws, would now be required to provide their employees FMLA.  In this case, the handbook that never needed an FMLA policy would have to be revised to ensure employees were aware of their newly acquired rights.

Thus, by their very nature, employee handbooks should never be considered “carved in stone.”  They should be reviewed on a regular basis, annually at a minimum. This review should be performed by experienced employment law counsel to ensure that any and all recent legal and workplace developments are taken into consideration in the review and revision process.

 

Overbroad Employee Confidentiality Agreements

Many employers require employees to sign a Confidentiality Agreement regarding certain data and information that the employee will have access to in the course and scope of their employment. There are certain types of employer data that must be maintained as confidential such as:

  • Client identification or personal health information under the federal Health Insurance Portability and Accountability Act (HIPAA);
  • Personally identifiable information (PII), such as donor names and credit card numbers or employee addresses and social security numbers under privacy and state confidentiality laws.

Additionally, general business information that an employer needs to keep confidential for business reasons to maintain a competitive advantage such as business plans, financial resources, funding sources or customer lists falls within the definition of trade secrets and can be maintained as confidential.  Protecting this data is simple, right? You just have employees sign a broad confidentiality agreement, and that’s that!

Like many areas of employment law, it’s not that simple. In a recent decision of the Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, the court held that a non-union nonprofit organization violated the National Labor Relations Act (NLRA) by promulgating an unlawful confidentiality agreement and terminating an employee for his refusal to sign the agreement.  The agreement required employees to maintain confidential information protected by HIPAA, but went beyond that and “strictly prohibited” employees from disclosing information with respect to all “non-public information intended for internal purposes,” including ”administrative information such as salaries and the contents of employment contracts.”  The policy also prohibited employees from being “interviewed by any media source, or answering any questions from any media source regarding their employment” or “other workings and conditions” of the employer without the employer’s consent.

When an underperforming and problematic employee was ultimately terminated for his refusal to sign the agreement, he filed an unfair labor practice charge with the National Labor Relations Board (NLRB). Citing the longstanding NLRB rule that discipline imposed pursuant to an unlawfully overbroad employer policy is unlawful, the NLRB, as affirmed by the court on appeal, determined that the termination was unlawful even though in this instance the employee was acting alone. All employees covered by the NLRA, regardless of whether they are unionized, have the right to engage in what is considered “protected concerted activity” under that NLRA, and discipline based on any policy that restricts concerted activity is unlawful.  While a confidentiality policy could prohibit HR or accounting staff from discussing the salaries of other employees, such a policy could not prohibit employees discussing their own compensation rate, or asking their coworkers to discuss this compensation.

Nonprofits should review any confidentiality policies or agreements to make sure that employees covered by the NLRA are not restricted in their ability to discuss or reveal information that involves the terms and conditions of their employment or their rights to engage in protected concerted activity, which would include discussions with co-workers or third parties such as the traditional or social media.

What You Need to Know About Retaliation Claims

Since the United States Equal Employment Opportunity Commission (EEOC) issued its enforcement guidance surrounding workplace retaliation last summer, employers have been on notice to exercise caution when taking adverse action against an employee following protected activity.  Absent clearly documented evidence of a legitimate business reason for adverse action, like termination, such action taken by an employer following an employee’s participation in protected activity may be deemed as retaliatory, leaving the burden on the employers to defend their actions. Protected activity includes such things as:  requesting an accommodation; taking a leave of absence; or participating in an investigation.

Laying out a three-prong test, the EEOC tells us that in order to establish a claim of retaliation, employees merely need to show that: 1) they were participating in protected activity; 2) they suffered some kind of adverse employment action; and 3) there is a causal link between the activity and employment decision.

Unfortunately, even employment actions taken with no retaliatory motive and made in good faith may undergo scrutiny if an employee feels they are being punished. Therefore, while the first two prongs of the EEOC’s test may appear straightforward, the following should be considered as best practices in order to minimize risk and disconnect the link between protected activity and subsequent adverse employment action:

  • Maintain a written policy that is made available to all employees regarding zero tolerance for retaliation, including ways an employee may report actual or suspected retaliatory conduct.
  • Have written employment policies and consistently apply them.
  • Review policies and practices to ensure employees are not deterred from engaging in protected activity.
  • Train managers and supervisors on your anti-retaliation policy and how to handle employee discipline following protected activity.
  • Promptly and thoroughly investigate all complaints.
  • Accurately report job performance on performance evaluations. A below-average performing employee should not receive all superior marks. Use factual examples to support less than satisfactory ratings.
  • Clearly and thoroughly document business decisions your nonprofit may make that employees may consider as adverse (e.g., moving office space or eliminating positions).
  • Document job-related reasons for all actions, including poor performance or unwillingness to perform duties, to link adverse actions to poor performance rather than protected activity.
  • Ensure employees are aware of their job requirements by having up to date job descriptions, acknowledged by the employee.
  • Evaluate options in lieu of termination or discipline, including coaching, performance improvement plans, and additional training, especially if the adverse action is close in time to the protected activity.

Employers should also be aware that while retaliation may be as obvious as a termination, it can also be less recognizable, such as with overlooking an employee for a promotion, directing another employee to engage in harassment or retaliatory conduct, and criticizing or questioning an employee for filing a complaint.

Because the EEOC has linked adverse action to protected activity despite the passage of years between events, it’s critical for employers to always document and consistently apply policies.

While retaliation is prohibited conduct under state and local laws, employees also can find protection under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

 

*Note: While this article focuses on the employment relationship, retaliation is prohibited against job applicants and volunteers. 

Related Links:

The EEOC Enforcement Guidance on Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers:  Enforcement Guidance on Retaliation and Related Issues:
https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

EEOC Guidance on Mental Health Conditions and Accommodations in the Workplace

Citing a substantial increase in complaints of discrimination and failure to accommodate employees with mental disabilities, the United States Equal Employment Opportunity Commission (EEOC) has released new guidance for employees with these disabilities, advising them of their rights to be free from such discrimination and to request and receive accommodations for their disabilities.

Entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights,” the guidance contains a number of questions and answers to help employees understand their rights under the Americans with Disabilities Act and how the interactive process should work to reach an understanding with the employer about what accommodations can be provided. It also advises what actions on the part of the employer are prohibited, such as firing employees for having a disability, failing to engage in a meaningful interactive process, and forcing employees to take a leave of absence, among others. Furthermore, it contains information regarding the right of employees to have medical information maintained confidentially when obtained through the interactive process.

The EEOC also offers information that may be helpful for employers. For example, the guidance provides a link to a fact sheet entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation.”  Included in this material is a list of how a provider makes available documentation of the disability that the employer may require and what that documentation should include, such as the nature of the employee’s condition, the employee’s functional limitations in absence of treatment, the need for reasonable accommodation, and suggested accommodations.  This clarifies what information the employer is entitled to receive in the documentation process.

The increase in complaints being filed and litigated by the EEOC on behalf of these disabled employees explains why they are taking measures to increase the awareness of employees with mental disabilities of their legal rights in the workplace and their right to accommodation to enable the employee to do their job.  Employers should be strongly advised to review this guidance in detail, not only to avoid the possibility of claims arising from the improper handling of requests for accommodation, but moreover, to ensure that these employees’ rights are protected and not compromised, as the law requires.

The full text of the EEOC’s guidance can be found here.

 

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