Nonprofits Insurance Alliance

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Preventing Sexual Harassment in the Workplace (Hint: It Starts at the Top)

As recently stated by the Equal Employment Opportunity Commission (EEOC): “harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves.”

The truth of this statement cannot be overstated.  While it has long been believed that training and an effective complaint process is the way to stop the problem, the EEOC has pointed out that more is likely needed.

“With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And, most important of all, what can be done to prevent it? After 30 years – is there something we’ve been missing?”

It could be said that the missing element is leadership. Too often, yet for good reason, dealing with sexual harassment in the workplace is something that management, executive directors, and chief executive officers often defer to others to handle and manage.

Perhaps the time has come to see the wisdom and efficacy of having the leaders of the mission of the enterprise become more personally involved in the necessary task of eliminating and preventing sexual harassment in the workplace.

Granted, the reality is that many of these individuals are very busy, taxed and overworked. However, a demonstration by senior management and supervisors that they acknowledge, understand, and will take an active role in prevention can only have a positive effect upon the consciousness in the workplace that “zero tolerance” means just that.

In general, there are many ways this leadership can be demonstrated. Here are just a few suggestions:

1. Management Should Take an Active Role in Training

While senior managers are in attendance in training sessions, as some states require, they are often left off the list of presenters. Indeed, the presence of these agency leaders provides a strong and important signal to staff that this subject is important and that management is committed to the elimination of sexual harassment in the workplace. It’s also important to consider an active role in the presentation by the manager, as their level of engagement is likely to have a significant impact on the staff’s engagement.

2. Train Supervisors to Monitor the Workplace for Policy Breaches

Supervisors should be trained to proactively monitor the workplace for any breaches of the organization’s sexual harassment policies. Supervisors and management are uniquely positioned to monitor the interactions of staff with one another and to make inquiries if there is a hint that any form of harassment is occurring, or if one demonstrates the effects of being victimized.

3. Demonstrate Proactive and Effective Support of Enforcement

Given the need to effectively deal with an occurrence of sexual harassment in the workplace, it’s important to remember that the best way to fix a problem is to remove the offender. This often presents management with a conflict of loyalties if the offender is a long-time employee, colleague, or friend. Moreover, it can be the case that the offender is a very productive or important contributor to the overall operation of the agency, including members of senior management. These loyalties or practical concerns must be set aside in making decisions and imposing consequences for violation of sexual harassment policies. No one is too important, indispensable, or essential to an employer’s business to be disciplined for violations of a zero tolerance policy, and managers should demonstrate the courage to handle these situations properly.

4. Monitor and Track Complaints and Investigations

While the complaint and investigation processes are properly delegated to staff with the experience and expertise to handle these critical functions, it’s also vitally important that management know how these actions are handled. Keeping track of the status of complaints and investigations allows management to know the character of their workplace and the agency’s progress in ensuring the workplace is free from harassment.

5. Maintain an Open-Door Policy

Nothing will encourage employees to come forward and report their experiences more than a senior manager who welcomes, supports, and empathizes with them. That support not only enhances morale within the workplace affected by harassment, but also demonstrates an appreciation of the problem and commitment to prevent it from occurring again.

The law has placed no greater importance on any single aspect of employment than the prevention and elimination of sexual harassment. While training and effective complaint and investigation policies have provided methods to achieve this goal, dedicated understanding, support, and encouragement by the leaders of an organization are essential to ensure that mission will succeed.

Employees with Disabilities and the Americans with Disabilities Act

Imagine meeting with your employees for their routine annual evaluations and having to tell your once star-performer that their performance is slipping and they are no longer meeting the requirements of the job. You may have a Performance Improvement Plan (PIP) in mind, when the employee discloses that their work product has declined because they are having difficulty doing their job as a result of a medical condition, and you had no idea. Now what?

While some disabilities are obvious, others are not and this is why it is important to always be prepared when an employee discloses a medical condition, physical or mental, that is causing them difficulties at work.

Under the Americans with Disabilities Act (ADA) and as expanded under the Americans with Disabilities Amendments Act (ADAAA), employers with 15 or more employees must ensure equal access to employment for applicants and employees. In other words, the ADA/ADAAA prohibits discrimination based on disability and requires that employers remove barriers to allow qualified individuals equal opportunity to secure and maintain employment without regard to their disability. This federal law requires employers to provide reasonable accommodations to employees that would allow them to perform the essential functions of their job, unless doing so would impose undue hardship on the business or pose a direct threat to the health or safety of the employee or another.

In order to determine whether there are reasonable accommodations available, employers should engage in an interactive process, a collaborative discussion with the employee to determine how the employee can continue to perform essential functions of their position. The following is a list of suggested steps employers should take to ensure a routine and consistent process:

  1. Recognize a request and ask the employee, “How can we help?”
  2. Gather information to determine limitations
  3. Identify essential functions vs. marginal functions by reviewing a current job description
  4. Explore accommodations
  5. Choose accommodations, if any, and notify the employee
  6. Monitor the effectiveness of the accommodation
  7. Maintain status quo or determine new accommodation

The interactive process should be individualized, meaning two employees with the same disability may have different limitations and result in different accommodations. Therefore, it’s important to gather information from a medical provider and have confidential discussions with the employee to learn more about possible accommodations.

While employers may get creative and come up with new ideas that work for both the nonprofit and the employee, other routine examples of accommodations include: allowing a telecommuting arrangement; authorizing additional breaks throughout the day for an employee to check insulin levels; providing leave to an employee for cancer treatment; and permitting an employee to leave work early to attend drug and alcohol rehabilitation sessions.

When working with disabled employees, employers should keep the following in mind:

  • The Interactive Process may be conducted face-to-face, through a phone conversation, or even by written instrument (e.g., email).
  • The employer may select accommodations and offer the employee alternatives and is not limited to the requested accommodation of the employee.
  • If the employee is unable to perform the essential functions of their job with or without reasonable accommodation, the employer may place the employee in a vacant position, so long as the employee is qualified and the employee can perform the essential functions of the vacant position.
  • Employers do not have to create light duty positions for employees with disabilities. The employee is expected to perform the essential functions of a job and the employer should evaluate accommodations to allow those functions to be performed.
  • Because the Interactive Process is an ongoing collaborative process, employers should monitor the effectiveness of an accommodation to determine if it should continue or if it is necessary to explore alternatives.

Returning to your star-performer who disclosed a medical condition during a performance discussion, a best practice would be to put the PIP on hold and refer the employee to your nonprofit’s HR Department/representative to commence the ADA interactive process. Ideally, managers will handle performance concerns and HR will handle the confidential accommodation interactive process.  Once the interactive process is completed, you should monitor both the effectiveness of the accommodation and the employee’s performance. It is acceptable to record the prior substandard performance in any evaluation, and to track performance during any accommodation period.

As always, nonprofits are encouraged to apply their policies and practices consistently.  By following the same general process, employers can lower their risk of a discrimination claim and maintain documentation to demonstrate compliance with federal law.  Employers also should be aware that some states have stricter requirements.  While the ADA covers employers with 15 or more employees, some states have disability accommodation and anti-discrimination statutes that apply to even smaller workforces.

For more information on the Americans with Disabilities Act and how it can affect smaller nonprofits, also check out this article from the nonprofit knowledge network MissionBox.com.

Developing a Risk-Aware Culture

We know when it comes to your nonprofit’s work, the phrase “risk management” doesn’t necessarily make you feel like jumping up and down with excitement— but it’s as crucial as any other task your organization undertakes. Good risk management helps ensure your nonprofit will have enough assets to carry out its mission, and it also vastly increases the odds that your organization’s actions will not harm the population it serves, the general public, or your employees and volunteers.

Of course, even the best planning cannot assure that bad things will not happen to good nonprofits. However, without risk management plans, nonprofits leave themselves vulnerable to events that could cause harm to individuals served by their organization, or to the organization itself. These types of incidents can be costly financially, and can affect your organization’s reputation with funders and in the community. However, even a good risk management plan won’t save the day if you don’t have the culture to execute it.

In many ways, risk management is just one aspect of overall good management.  Risk culture can be defined as the “soft” side of risk management. At a basic level, risk culture is the way everyone in an organization feels about risk, and recognizing that feelings, attitudes and perceptions about risk and safety will influence how they are managed. It sets the tone of an organization, influencing the risk-consciousness of its people as they conduct their daily activities and pursue their business objectives. The culture of the organization sets the tone, and research demonstrates that the level of safety performance an organization can achieve is dictated by its culture. It’s the fabric in which you wrap your organization, and the tighter knit the fabric, the more protection it’s able to provide!

Of course, culture isn’t something that can be changed overnight. It requires constant, consistent messages to your employees and volunteers that managing risk is a part of their daily responsibilities. Not only is it valued, but it’s critical to your organization’s success and survival. Keep in mind – you’re not working to make safety and risk management a priority for your nonprofit– you’re working to change how people value each other and your clients, and that translates into safety and risk management. Not everybody is going to value processes and procedures, but they will comply with them if they believe that doing so will help keep the people they care about safe.

In fact, almost all incidents can be traced back to individual human behavior. Sometimes we want to get a job done quickly and we think we know what we’re doing, or we think nothing bad will happen, so we skip steps. That’s why it’s important for people in the organization to watch out for one another, and for the group mentality to be about safety and risk aversion. And while having the courage to speak out when you see something unsafe can be uncomfortable or difficult, it matters. The support for giving all employees the safety to speak out when they believe they have spotted an unsafe condition must come from top management.  Employees need both permission and the right communication channels to be able to report concerns.

At this point you’re probably wondering – how do you gauge current risk culture at your organization? Keep in mind that culture is revealed through behavior, and people adjust their behavior to match the behavior of those around them. Your organizational culture drives the behavior of your employees and volunteers.

Top leadership has to make sure that everyone knows that he or she supports a culture of transparency and values input from employees and volunteers.  Having a strong risk culture means your staff and volunteers know what your organization stands for. They need to know that their behaviors and actions don’t put themselves or others at risk.

Building a risk aware culture is one of the most important things you can do for your organization. Although risk management is a process, not an all-or-nothing proposition, every journey begins with a first step. You may have binders full of risk management protocols and procedures and still not have a risk aware culture. Or, you might not even think you have a “risk management” plan, but still have a risk aware culture that provides safe outcomes for your staff, clients, and volunteers.  Don’t get bogged down with the words “risk management.”  Ask yourself whether you have a culture of caring for others and whether you have established practices and procedures that help reinforce and standardize those caring practices. That’s true risk management!

Background Checks and Ban the Box in California

Historically, it has not been uncommon for risk-adverse employers to adopt policies prohibiting the hiring of applicants with a criminal history. Given that one in seven Americans has some sort of criminal history, numerous states and local jurisdictions are passing legislation that makes it more likely employers will consider these applicants. Increased employment opportunities have been shown to reduce the likelihood of recurring offenses for workers with a criminal record, and help these individuals re-integrate into our communities.

Key to these legislative efforts are “Ban the Box” laws, which generally prohibit employers from inquiring about criminal history on the employment application. Nine states and more than 15 cities have adopted Ban the Box laws that apply to private sector employers, with many more jurisdictions applying these laws to government contractors.

California jumped on the ‘Ban the Box’ bandwagon with Assembly Bill 1008, effective January 1, 2018. Modeled after the City of Los Angeles’ Fair Chance Ordinance, this new California law prohibits employers with five or more employees from inquiring about criminal history until a conditional offer has been made. Ban the Box laws don’t prohibit employers from considering criminal history, but rather create a process establishing the timing of when the criminal history can be considered. There are limited exclusions under California’s Ban the Box law, including for positions where an existing law requires criminal background clearance.

Under the California Ban the Box law, an employer must make an individualized assessment of whether an applicant’s criminal history is acceptable or not. It also outlines a process by which the applicant can dispute the accuracy of the criminal history, and provide evidence of rehabilitation or mitigating circumstances for the employer to consider. Employers are required to provide notice of their decision, and grant an opportunity for the applicant to respond, before making the decision final.

While the Ban the Box law is a recent addition in some states, the requirement that employers conduct an individualized assessment of applicants with criminal histories is not. In 2012, the federal Equal Employment Opportunity Commission (EEOC) adopted Enforcement Guidance for employers considering denying employment based on criminal records. These guidelines were founded on studies which demonstrate that criminal record databases are inaccurate or incomplete, and that using criminal history as a basis to deny employment creates the potential for disparate impact of individuals based on factors such as race, which is unlawful under Title VII of the Civil Rights Act.

The EEOC guidance lays out a process for employers to conduct an individualized assessment of whether, based on the job, there is a business necessity to exclude an applicant with a particular criminal conviction, which includes a review of the nature and gravity of the offence, the time that has passed since the conviction or completion of the sentence, and the nature of the job sought.

Many states, including California, have similar regulations or guidance on this issue, including laws that limit an employer’s ability to use certain types of criminal records, such as arrest records, juvenile records, or certain low-level marijuana convictions. Additionally, the Fair Credit Report Act (FCRA) and similar state laws, require employers to obtain written permission to search the criminal records history of employees and applicants, and to follow additional notice procedures if a criminal record is being used to deny employment.

When it comes to criminal background checks and Ban the Box laws, the key take away for employers is to review all laws applicable to their workers’ in the jurisdiction in which they work, and to create checklists and standardized forms to ensure compliance.

Liquor Liability 101: How to Serve Alcohol at Your Nonprofit Events

When most Americans think of this time of year, they imagine hot cocoa, candy canes, and reindeer. However, when most nonprofit leaders think of this time of year, their minds go to holiday events and fundraisers, the spirit of giving, and, more likely than not, how to safely provide alcohol at said events. Whether your nonprofit is serving alcohol to employees and guests, or selling it in order to raise money, here are some questions to consider so that your nonprofit doesn’t find itself faced with an alcohol-related lawsuit.

Are You Familiar with Your State’s Social Host Liability and Dram Shop Laws?

Social host liquor liability laws cover situations where liquor is provided at no cost. Most states have these laws, which hold your organization responsible for providing liquor to minors in any situation that results in injuries to the minor, or injuries that the minor causes to others due to alcohol intoxication. Some states have stricter social host liability laws which go beyond underage drinking. These laws can hold you responsible for accidents caused by anyone allowed to drink to excess then injures themselves or a third party.

Dram shop laws determine how the liability flows from injuries caused by intoxicated people or minors when alcohol is being sold to customers. If a nonprofit has a fundraiser and sells liquor to attendees, in some states they could be held responsible if an attendee has an alcohol-related accident and injures themselves or others. In fact, depending on the state, an establishment selling alcohol could be held 100% liable for alcohol-related accidents if it’s proven a person got intoxicated, or further intoxicated, at their establishment.

Understanding these laws will help your nonprofit put the proper controls in place to better protect against an alcohol-related accident. This is especially true in states that allow nonprofits to easily obtain an event specific liquor license, such as Colorado. While these days liquor licenses make it easy for a nonprofit to organize a fundraiser where they sell alcohol, that doesn’t mean that liability doesn’t exist.

Do You Have Controls in Place for Service?

The key to any event involving liquor sales or host liquor is making sure you control who can attain an alcoholic beverage, and how much they are able to access. There should be controls in place to ensure that minors are not served alcohol. This can be done in many different ways including:

  • requiring a picture ID anytime someone asks for a drink
  • giving out bracelets or wristbands to potential alcohol drinkers after showing ID, and having the bartender check for the bracelets
  • giving out drink tickets to adults (with proper ID)

In addition to making sure people are old enough to drink, you should also have controls in place to make sure visibly drunk people are cut off from being served additional alcohol.  Depending on the state, there are laws which stipulate when a bartender should stop serving someone who is considered to be intoxicated. In certain insurance claims, it’s the bar’s adherence or neglect of these rules which make them more or less liable in cases of an alcohol related death.

The best way to control the flow of alcohol is to make sure your servers understand the laws and serving guidelines, and to limit consumption when appropriate.

Who is Going to Serve the Alcohol?

In most states, there are companies that specialize in bartending for events. These companies have trained and certified their bartenders to know specific state laws and serving guidelines, and as such, many nonprofits choose to hire one of these companies for their events. In addition to bringing in trained bartenders, these companies also carry liability insurance, which should cover any negligence on the part of the bartender, such as serving a minor or a visibly intoxicated patron.

Some nonprofits will elect to serve the alcohol themselves, especially in host liquor situations where the alcohol is being provided at no cost. If this is the case, having controls in place and an understanding of state liquor laws is essential.  Any designated servers should be trained to proficiency on the signs of alcohol impairment, and have protocol for handling visibly intoxicated individuals.

Do you Have the Correct Insurance?

A standard general liability policy provides host liquor liability, which covers events where alcohol is provided free to guests, but not situations where alcohol is sold. Examples of what is covered include an open bar at a Christmas party, a wine tasting event for staff or donors, or providing beer at a picnic. For many nonprofits, this is adequate liquor coverage.

However, in some cases, nonprofits sell liquor at fundraising events. For example, a nonprofit may hold an event at a local bar, who donates their space and allows the nonprofit to keep 50% of the bar sales. In this example, the nonprofit could be held liable under dram shop laws, which may be more severe than host liquor laws. The nonprofit should request a full liquor policy to cover these events as they may not be covered under the host liquor liability included on their policy.

Although there are potential risks involved with serving alcohol to employees and guests at holiday parties and fundraising events, learning about state laws, putting proper controls in place, and having a comprehensive insurance policy can help limit those risks so that your nonprofit can stay calm and party-on this holiday season.

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