Effective not-for-profit organizations have employment policies that are fair, based soundly on applicable law, consistently applied, and are understood by employees and supervisors. In most cases, comprehensive employee manuals should be available to all employees from the first day of employment, and should be updated frequently as new needs arise or the law evolves. In every case, employee concerns should be addressed promptly so that formal complaints and grievances, administrative investigations and hearings, and arbitration and litigation are avoided whenever possible.
This manual has been prepared for leaders of not-for-profit organizations who are not expert in employment law. It should provide useful guidance in the preparation of human resource policies, and employee and supervisory manuals or handbooks. While every effort has been made to assure accuracy, this manual cannot provide answers to every employment law issue. The laws and regulations are extremely complex, and new interpretations by the courts and administrative agencies are frequent. In addition, the great diversity of missions of not-for-profits assures that unique questions will arise, all of which cannot have been adequately addressed in this manual. Do not attempt to prepare your organization's human resources policies from this manual alone; the assistance of an employment law specialist is essential.
This manual has been prepared to take advantage of the vast legal resources available without charge on the Internet. Wherever available, the web site of the relevant government agency is provided. All federal and state statutes and regulations cited may be found at http://www.law.cornell.edu/. The U.S. Code is at http://www4.law.cornell.edu/uscode/. New York statutes are at http://www.law.cornell.edu/states/ny.html. Connecticut statutes are at www.cslib.org/psaindex.htm. New Jersey statutes may be found at http://www.njlawnet.com/njstatutes.html. Other useful materials can be found at http://findlaw.com/.
The professional staff and volunteers of the Pro Bono Partnership and the Lawyers Alliance for New York are available to assist your organization in preparing and updating your human resources policies. They are resource centers for non-profit managers and board members, and their lawyers, answering telephone inquiries, providing forms and guidance, and making referrals to volunteers with the appropriate expertise where necessary. They are also available to provide education and training to non-profit managers and board members on employment law and other legal matters.
No area of American jurisprudence has had a more dramatic influence on the way corporations operate than employment regulation and litigation. Federal, state, and local laws govern nearly every phase of the employment relationship. Not-for-profit corporations with employees must comply with the same federal, state and local laws to which all employers are subject.1 And not-for-profits are subject to the same types of litigation, with the potential of jury verdicts granting substantial damage awards.
There are important preventative measures that organizations can take to reduce the risk of litigation:
· Adopt an Employee Handbook that clearly communicates all employment-related policies and has been reviewed for legal compliance.2
· Adopt an Ethics Policy stating that employment shall be based only on merit, qualifications, and competence; that all laws pertaining to fair employment practices will be complied with; and that no employee or applicant for employment will be discriminated against because of race, age, sex, religion, color, national origin or ancestry, disability, sexual orientation, marital status, citizenship status, status as a Vietnam-era veteran, or other protected status under federal, state or local law.3 This policy must govern all areas of employment, including hiring, promotion, assignment and discharge.
· Adopt an Ethics Policy to provide an environment that is free of unlawful harassment of any kind, and on any basis prohibited by law, including harassment on the basis of sex. Unwelcome advances, requests for sexual favors, offensive language, jokes or other verbal, graphic or physical conduct relating to an employee's race, sex, religion, color, national origin or ancestry, age, disability, sexual orientation, marital status, citizenship status, status as a veteran or any other factor protected by law, whether implied or explicit, will be viewed as harassment. See Chapter XII, and Appendix G, Sample Ethics Policy.
· Document an employee evaluation process with progressive discipline. The written record will be closely examined in any employment litigation, and the record must support disciplinary actions taken.
· Constantly review and update policies for fairness. Fairness must be determined both within the organization and in comparison with the community in which the organization operates.
· Designate an experienced individual who is responsible for the implementation, interpretation, and enforcement of ethics and employment-related policies. For many smaller nonprofit organizations, the Executive Director customarily bears these responsibilities.
· Consistently apply the policies. While an organization is not required to have the same policy for all levels of employees, and often there are differing benefits and practices for hourly employees as opposed to exempt salaried employees, the policies should be consistently applied within each group. Inconsistent application can be evidence of unlawful discrimination and, just as importantly, create severe morale problems.
· Comply with your collective bargaining agreement, if any. Changes in practices, even if applicable to an entire organization, may have to be "bargained" with the appropriate union representative before they are implemented.
· Periodically audit and update policies and practices. A checklist of the types of materials that should be collected and reviewed is attached as Appendix A.
These can be summarized with what is referred to as the "CDEF principles:" consistency, documentation, evaluation and fairness.
There are numerous federal, New York, New York City, Westchester County, and Connecticut laws, which govern almost every aspect of the employment relationship. Some of the most significant are briefly summarized in Appendix B. This Appendix also contains the legal citation for the laws and related regulations, including Internet Web sites where available, and a reference to the location the subject is covering in greater detail in this manual.
Appendix C summarizes the poster notice requirements contained in the most significant employment laws.
Appendix D contains the names, addresses, telephone numbers, and, where available, the Web site locations of the primary governmental agencies which administer the employment laws discussed in this manual.
1 One exception is that organizations exempt under Section 501(c)(3) of the Internal Revenue Code are not required to pay federal unemployment tax (FUTA).
2 See Chapters III.B and XIII.
3 In New York State, add “military status, ” “prior arrest or conviction record,” and “predisposing genetic characteristics.” In New York City, also add "alienage or citizenship," partnership status" and "status as a victim of domestic violence, stalking and sex offenses." In Westchester, also add "familial status" "alienage or citizenship” and “status as a victim of domestic violence, sexual abuse or stalking." In Connecticut, add "past or present history of mental disorder" "mental retardation," and "learning disability, or physical disability, including but not limited to blindness."