Nonprofits Insurance Alliance

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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.

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.

When #MeToo Comes to the Nonprofit Workplace

It’s hard to ignore the plethora of revelations of sexual harassment incidents involving well-known public figures being revealed in the news recently.

It’s also difficult to ignore the grassroots social movement that resulted – the #MeToo campaign, originally started by consultant, blogger and advocate Tarana Burke over 10 years ago, and recently popularized with a tweet by actress Alyssa Milano that garnered more than 35,000 direct responses on its first day. From there, the hashtag quickly spread across multiple social media platforms and grew immensely in participation, with individuals all over the world chiming in to share their stories of harassment and assault, or simply posting #MeToo. To say the trend is viral is an understatement – people are speaking up, and they’re doing so publicly.

What you may not know is that the number of harassment complaints nonprofits have been receiving has increased as well. These complaints run the gamut from anonymous emails reporting decades old alleged transgressions to the reporting of current serious ongoing harassment of current employees by their supervisors. Sexual harassment is a serious issue and it is incumbent upon every nonprofit to do what it can to minimize the risk of these types of incidents from occurring.

At the Nonprofit Insurance Alliance Group, we have many free tools to assist our members in addressing these risks. The following resources are available to our nonprofit members when faced either with a current complaint of sexual harassment in the workplace, or to educate your workforce in mitigating the potential risk of sexual harassment becoming an issue.

  • Free recorded webinar on Preventing Sexual Harassment and Abuse Conduct in the Workplace, which can be accessed
  • Free recorded webinar on Conducting Internal Investigations, which can be accessed
  • Members with a current Directors and Officers policy (which includes Employment Practices Liability) can take advantage of free unlimited Employment Consultations. Labor & Employment Risk Managers (LERMS) can assist members in understanding best practices for establishing a harassment free workplace, including sample policies and recommended training; the processing of a complaint of harassment, including internal or external investigation and assessing risk; and possible steps to remedy the situation. Information on how to request a consultation can be found here.
  • Free Sexual Harassment Prevention Training for Supervisors, available for nonprofit members in Connecticut and California where such training is legally mandated. Additional information can be found here.
  • Training brochures for nonprofit staff working with youth, entitled “Supervision of Children and Teens Never Includes Sex,” which is available

In addition to these resources, you should confirm with your nonprofit’s insurance broker that you have sufficient Employment Practices Liability (EPLI) insurance coverage under a Directors & Officers (D&O) insurance policy, and/or Improper Sexual Conduct (ISC) coverage, if you are exposed to risk in this area.

Making these tools available should help create a healthy and respective environment at your nonprofit, minimize the likelihood of a #MeToo incident from occurring, and assist you in responding if such an incident does occur.

From the Claims Files: Woeful Website Wording

The chances are that your nonprofit has a website. In the digital era, creating and maintaining a website is almost unavoidable. It explains your nonprofit’s mission and programs to current and potential supporters, solicits donations, and provides additional information on events and fundraisers. The fact of the matter is, your website is the face of the organization.

Given the importance of your nonprofit’s website, it shouldn’t be a surprise that choosing your wording with care and caution is a must – so that visitors are not only engaged and interested in your nonprofit, but also leave with a clear and accurate understanding of what your organization does. Without clear language, individuals in the general public may misconstrue what it is your organization does, and as a result, could end up suing for damages. Unfortunately, that’s exactly what happened to one of our nonprofit members.

The Claim

The nonprofit runs a halfway house for men with dual substance abuse and psychiatric issues. Their clients come into the program after being discharged from hospitals, to make sure they’re stable and can establish both a job and a place to live. One such client, who we’ll call John, entered the program to manage and treat both schizoaffective disorder and an addiction to methamphetamines. During the intake process, John told the organization that he was single and had no spouse – this turned out to be a lie and while John was in treatment, his wife filed for divorce. Despite this, John’s condition was stabilized, he found a job and an apartment, was discharged from the program, and by all accounts was doing well.

After seeing how well things were going for John after he was discharged from the program, his wife tried to re-enter the picture and showed up to his new apartment to reconcile. As the couple was about to become intimate, John’s wife discovered that he had a visible STD. It was subsequently discovered that John had been having an affair with a staff member at the nonprofit, and they were now in love.

The staff member was let go as a result, but John’s wife sued the nonprofit for emotional damages caused by the relationship. Initially, it was deemed that she had no standing in court as she was not a client of the nonprofit, so the judge dismissed the claim. However, she then amended her complaint based on the fact that the nonprofit’s mission, as listed on their website, was to help addicts and their families. The inclusion of families in the nonprofit’s mission meant that the wife could be included under the umbrella of who is being served by the organization.

In the end, it was ruled that the website’s text did not mean that John’s wife was owed anything by the nonprofit, and the suit was ultimately dismissed. However, this claim had the potential to cause of lot of problems for the nonprofit, had the court agreed with the wife that the word “families” meant she was a client of the nonprofit organization.

Lessons Learned

Although this claim did not result in liability for the organization, it highlighted the potential that words used in nonprofit marketing materials, such as websites, have the potential to create legal liability. Words describing services can be alleged to be an implied-in-fact contract or create a legal relationship which can create a legally-enforceable duty to act in a certain manner. So what’s the takeaway from this nonprofit’s story? Your organization’s wording, on its website and elsewhere, is critical. For that reason, carefully examining what you’re communicating and how, is essential – not only to ensure it’s accurate and engaging, but also to ensure that you’re not opening your organization up to unanticipated liability. Legal review of such materials or disclaimers may be appropriate risk mitigation tools for those nonprofits in highly regulated industries, such as health care.

Transporting Vulnerable Populations

Transportation provides a vital lifeline for vulnerable populations to access employment, education, healthcare, and community life. Your organization may transport disabled individuals, developmentally disabled children or medically fragile seniors, or it may transport individuals in wheelchairs or other special mobility devices. Regardless of the individuals being served, there are many factors that come into play when providing safe transportation to these more vulnerable populations. When reviewing your transportation programs, it may help to ask yourself the following questions:

  • What written policies and procedures are in place to ensure client safety and protection against liability? How will they be enforced?
  • What is the level of knowledge and training required for drivers, to ensure that clients are safely transported? Do your drivers know that smooth operation of the vehicle is extremely important in transporting individuals with disabilities?
  • How do I demonstrate through my recordkeeping that my staff are trained to proficiency?
  • Are your vehicles in good working order? Do they have proper securement equipment for mobility devices?
  • What are the established safety standards and restraint systems for securing and transporting wheelchair bound clients?

To keep your clients safe, it’s essential to know the answers to these questions. Why? What could go wrong? Here are two examples from our claims files:

High-Risk Clients

The first example features a community support agency that provides transportation for seniors to medical appointments. One of their clients was known by the member to unbuckle himself when being transported. The driver on this occasion knew of the client’s behavior and had refused to transport him earlier that morning; the afternoon driver, however, was not aware of this client’s behavior. The driver secured the client, who later unbuckled himself and fell. He subsequently injured his knee, which required surgery.

The investigation into this incident also revealed that the van was not equipped with federally-mandated shoulder harnesses or lap belts, making the van illegal to transport wheelchair bound individuals. The agency narrowly avoided an attempt by the client’s attorney to recover enhanced damages which might have been awarded due to the possibility of being charged with a violation of the Americans with Disabilities Act. The claim cost $350,000 as a result of the injuries incurred.

Lack of Training

The second example features another community services center; where drivers transport clients with physical and mental disabilities to do errands, such as going to the laundromat. On the day of the incident, there were three clients on board in the van, one of whom was in a wheelchair. The driver for the nonprofit member had put the client, a 35-year old woman with a congenital brain disorder, on the lift and strapped the chair down with all four straps, as she usually did. In the middle of a left turn, the chair tipped over. She stopped and righted it, not noticing that the tie-down straps were loose. Meanwhile, the woman had hit her head and become unresponsive. The driver traveled back to the center immediately, where an ambulance was called. The client’s head injury resulted in a severe worsening of her condition. During the investigation, the driver stated that she had never received any training in how to properly tie down a wheelchair. The family of the client made a claim through their attorney and it eventually settled for $800,000.

 

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