Holiday Parties - Yikes!! How to Avoid Liability

Its that time of year again. Don't give plaintiffs attorneys any gifts!! The following are areas where even the best of intentions can go awry.

Alcohol - Having no alcohol at holiday parties can greatly reduce your risk of liability (e.g., injuries at the party, harassment/improper comments). But the reality is that everyone likes a little holiday cheer (in moderation). If you're planning to offer alcohol at your event, here are a few things to consider:

• Try to limit alcohol consumption by offering a variety of non-alcoholic drinks AND ensure that sufficient food is served. Also, consider serving only beer or wine and not offering any hard liquor; 
• Offer a limited number of drink tickets and a cash bar. Non-alcoholic beverages should be free and plentiful; 
• Provide cab vouchers or otherwise arranging for the safe transportation home (e.g., car pools). This can help reduce the risk of drunken employees driving on the roads; 
• Have a luncheon instead of an evening party. It's less likely that employees will drink too much (or at all) during the day.

Harassment - Although holiday parties are business events, employees sometimes do things at these parties that they wouldn't do at work. Management and Human Resources should look out for inappropriate behavior and respond promptly and appropriately to protect employees from otherwise avoidable incidents and the employer from liability. This doesn’t mean organizing a sentinel watch, but keep your eyes open. Even though employees are having fun, this is not the time for HR to look the other way.

Religious Discrimination – Be sensitive the variety of beliefs within your workforce. Be as inclusive as possible when organizing and promoting holiday events. 

Attendance - Attendance should be optional – if attendance is mandatory, you might have to pay your employees for attending.

Holiday parties should be fun and an opportunity for you to express your appreciation to your employees. Unfortunately, these can have the unintended effects of increasing employee complaints and possibly litigation. If you’re thinking about sponsoring a holiday party for your staff, plan carefully and hopefully everyone will enjoy themselves.

If you have any questions about holiday parties or any other employment law issues, please contact me or visit my website.

New Disclosure Requirements Proposed For Nonprofits Engaging In Electioneering In NY

Proposed Regulations Would Require Nonprofits To Disclose Extent Of Their Political Spending, Identify Donors And Expenditures Related To New York Elections

Attorney General Eric T. Schneiderman announced new regulations requiring nonprofit groups, including 501(c)(4) social welfare organizations that are registered with the state, to report the percentage of their expenditures that go to federal, state and local electioneering.  Those groups that spend at least $10,000 to influence state and local elections in New York will be required to file itemized schedules of expenses and contributions.  Under the proposed new rules, those disclosures will be released to the public. Read the text of the proposed regulation here.

The new regulations would apply to all registered organizations exempt from taxation under section 501(c) of the Internal Revenue Code, except for 501(c)(3) organizations, which are already strictly prohibited from intervention in political campaigns.  The regulations define “electioneering activities” to include express advocacy (advertisements and other communications that call specifically for the election or defeat of a particular candidate, referendum, or party) and issue advocacy (communications made within 180 days of an election that identify or depict particular candidates, referenda, or parties by name but that do not explicitly call for their election or defeat). The regulations apply to communications through television, radio, print advertisement, telephone and over the internet.

The new disclosure regulations would also require registered nonprofits that spend $10,000 or more in a year in connection with New York state and local elections to file an itemized schedule with its annual financial report disclosing: (1) each expenditure it made in connection with a New York state or local election, including the expenditure’s recipient, date, amount and purpose; and (2) each contribution of $100 or more it received, including the contributor’s name, employer and address, and the amount and date of the contribution, subject to certain limitations and exceptions to protect donor privacy. This information will be made available to the public.

The regulations exempt any nonprofit from having to file information with the Attorney General that the organization discloses to another agency that makes it available to the public.

The proposed regulations contain two key exceptions to the disclosure requirements. First, the regulations do not require the schedule to include information about donors whose donations are restricted so that funds cannot be used for electioneering. So long as organizations keep earmarked funds in separate bank accounts from funds that are used for electioneering, information on that donor need not be disclosed.  Second, if public disclosure of a contribution or a donor’s identity could cause undue harm, threats, harassment or reprisals, the organization or the donor can apply to the Attorney General’s office for a waiver from disclosure of information concerning that donor.

 

Please contact me if you would like more information regarding this proposed regulation or visit my website.   

What’s Going On? Medical Inquiry Under The ADA?

Question:  If an employer asks “what’s going on?” and the employee responds by disclosing medical information, is that medical information subject to the confidentiality provisions of the Americans with Disabilities Act (ADA)?

Short Answer: No.  The Seventh Circuit limited the EEOC’s expanding interpretation of the “medical inquiry” provision of the ADA. 

The Facts: Gary Messier, employed by Omni Resources Inc., was on assignment at Thrivent. One day Messier did not show up for work at Thrivent so Thrivent called Omni looking for him. Omni emailed Messier asking him to contact them and stating “we need to know what’s going on.”

Messier responded via email explaining that he had a severe migraine and that he suffered from migraines since a car accident more than 20 years ago.  One month later, Messier’s employment at Omni and assignment at Thrivent were terminated.  Mr. Messier subsequently hired a reference checking agency. The reference checking agency contacted a Thrivent employee, who informed the agency that Messier gets migraines.

Mr. Messier filed a charge with the EEOC, who filed suit against Thrivent.  Messier alleged that by disclosing his migraine headaches to a third party, Thrivent violated the confidentiality provisions of the ADA, which require that medical information obtained from employees from “medical examinations and inquiries” be kept confidential.  Thrivent claimed that the information was not confidential because it was not obtained through medical inquiry or medical examination.

The Ruling: The Court held that with regard to the provisions in the ADA, the word “inquiries” does not refer to all generalized inquiries but only to medical inquiries. The Court also noted that when other courts have concluded that there might have been a “medical inquiry” courts have required, at a minimum, that the employer already know something was wrong with the employee before initiating the inquiry in order for that inquiry to be a covered inquiry under the ADA.  In this case, neither Thrivent nor Omni had any knowledge of Messier’s history of migraines.  In addition, a response to the question “what’s going on” could have brought forth any number of responses such as transportation problems, weather-related issues, or any number of logistical problems. 

The Bottom Line:  In order to run your business, you have to know where your employees are, especially if they're not at work when they're supposed to be there.  Its fine to ask what's going.  If the employees voluntarily discloses medical information, its not subject to the confidentiality provisions of the ADA.

Best Practices:  Regardless of the Court's decision, employers should take steps to ensure any medical information received from an employee is treated as confidential.  This will help to avoid litigation but it will also assure employees that their circumstances will be treated with discretion. 

Employers should designate a manager or human resources representative as the employee authorized to respond to inquiries relating to former or current employees.  Employers should also make every effort to instruct these designees on appropriate responses. 

Contact me if you’re facing this or a similar issue.  For more information, check out my website. 

Are Your Nonprofit's Workers Employees Or Independent Contractors?

Many nonprofit employers use independent contractors to supplement their regular workforces.  In general, there’s nothing wrong with that but it is critical that nonprofit organizations (NPOs) properly distinguish between employees and independent contractors.  Federal and state governments are increasing their efforts to identify and correct independent contractor misclassifications. Government agencies are more aggressive in investigating claims of misclassification and prosecuting offending employers, including NPOs.  The consequences for violations can be significant. 

What’s the Potential Liability?

Nonprofits that misclassify workers as independent contractors may be subject to significant federal, state and local tax liabilities (plus interest and penalties).  NPOs may face additional reporting and withholding obligations and potential liability for back wages, overtime pay, and unpaid unemployment benefits.  While the penalties are steep and designed to encourage compliance from all employers, the effect on tax-exempt status, public relations and therefore the ability to raise funds is of particular importance to NPOs.  

IRS and DOL are Watching

The Internal Revenue Service (IRS) is currently in the middle of a three-year audit initiative targeting 6,000 randomly selected employers, including NPOs.  One area of focus for the IRS examiners is the classification of workers as independent contractors.  In addition to worker classification issues, the IRS will focus on reimbursed expenses, executive compensation, and backup withholding.

The Department of Labor (DOL) is also increasing its focus on worker misclassification.  The DOL will continue to increase enforcement activity and has dedicated significant resources to focus on worker misclassification and the recovery of related unpaid taxes.

Bottom Line

In order to minimize liability, employers that use independent contractors should perform an audit of its workforce classification process to ensure compliance with applicable federal and state laws. 

If you're facing this issue or have questions about employee classification,  contact me or visit my website.   

The ADA and Leave Policies - Don't Get Burned!!

The Equal Employment Opportunity Commission (EEOC) reported that Interstate Distributor Company, a trucking firm, agreed to pay $4.85 million to settle a lawsuit alleging pattern and practice violations of the Americans with Disabilities Act (ADA).  Read the EEOC’s press release here.  According to Interstate’s policy, if an employee, after exhausting 12 weeks of leave needed additional leave time Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation.  Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. Interstate’s leave policy stated that employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation.  

This is a pretty straight forward policy – easy to administer; no discretion, objective on its face.  So, what’s the problem?

The EEOC charged that Interstate violated federal law by refusing to make exceptions to this "no restrictions" policy.  That’s the problem.  The EEOC holds the position that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability. The EEOC has been successfully pursuing this legal theory in court.  Enforcement of ADA claims remains a high priority for the EEOC and systematic violations, i.e., widespread or pursuant to employer’s policy or practice, are of special interest. 

Bottom Line  Employers would be wise to have their employee handbooks, policies and procedures reviewed and updated regularly to confirm that they are in compliance with the law.  Employers should have attendance policies and practices that address how reasonable accommodations will be provided – acknowledging that for paid or unpaid leave might be a reasonable accommodation for employees with disabilities.  Employers should also routinely provide EEO training for their managers and human resources personnel to insure that understanding and appropriate implementation of policies and procedures.  

Please contact the law office of Joycelyn McGeachy-Kuls if you're facing this issue or have any questions or visit our website at jmkuls.com for more information.