BALTIMORE, MD BETHANY BEACH, DE BETHESDA, MD DELAWARE Hot Topics in Nonprofit HR COLUMBIA, MD DISTRICT OF COLUMBIA [TITLE] DEARBORN, MI KENTUCKY and Employment Law FALLS CHURCH, VA MARYLAND LEXINGTON, KY MICHIGAN OCEAN CITY, MD NEW YORK PITTSBURGH, PA April 16, 2019 PENNSYLVANIA ROANOKE, VA VIRGINIA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 1 1
Speakers Moderator: Thomas Cluderay , General Counsel, Yellowstone Forever BALTIMORE, MD Eileen Johnson , CAE, Partner Whiteford, Taylor & Preston, LLP BETHANY BEACH, DE BETHESDA, MD Chevanniese Smith , Associate General Counsel, American Red Cross COLUMBIA, MD [TITLE] DEARBORN, MI Judy Branzelle , Chief Legal Officer and General Counsel, Goodwill FALLS CHURCH, VA LEXINGTON, KY Industries International, Inc. OCEAN CITY, MD PITTSBURGH, PA Jennifer Jackman , Partner, Whiteford, Taylor & Preston, LLP ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 2 2
Today’s Topics EEO compliance in hiring practices Executive compensation BALTIMORE, MD BETHANY BEACH, DE Remote worker management BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI Codes of conduct FALLS CHURCH, VA LEXINGTON, KY Dealing with difficult employees OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 3 3
Scenarios Employee – Aisha BALTIMORE, MD Remote employee BETHANY BEACH, DE BETHESDA, MD Minority COLUMBIA, MD [TITLE] DEARBORN, MI Age 24 – this is her first real job out of school following internships FALLS CHURCH, VA LEXINGTON, KY Supervisor – Ralph OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA Older, white male TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 4 4
BALTIMORE, MD BETHANY BEACH, DE Beginning the Employment BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI Relationship FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. Chevanniese Smith, Associate General Counsel WILMINGTON, DE American Red Cross [Lawyer] [email] | 5 5
Beginning the Employment Relationship Potential pitfalls at every turn . . . BALTIMORE, MD Application BETHANY BEACH, DE BETHESDA, MD COLUMBIA, MD Interviewing process [TITLE] DEARBORN, MI FALLS CHURCH, VA Offer LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA Drug testing ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 6 6
Application DON’Ts Not including an at-will disclaimer BALTIMORE, MD Not including a non-discrimination statement BETHANY BEACH, DE BETHESDA, MD Requesting dates in the education section COLUMBIA, MD [TITLE] DEARBORN, MI FALLS CHURCH, VA Asking about arrests and convictions LEXINGTON, KY OCEAN CITY, MD Including a background check acknowledgment PITTSBURGH, PA ROANOKE, VA Not including language about how to seek a reasonable TOWSON, MD WASHINGTON, D.C. accommodation WILMINGTON, DE Asking about familial status or citizenship [Lawyer] [email] | 7 7
Interviewing Process During the interview, Ralph says to Aisha, “That’s an interesting name, where is it from?” BALTIMORE, MD BETHANY BEACH, DE Polite chatter or improper question? BETHESDA, MD COLUMBIA, MD [TITLE] Train interviewers not to inquire into personal details DEARBORN, MI FALLS CHURCH, VA that seem innocuous but might reveal protected LEXINGTON, KY information OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA Focus on gathering information needed to determine TOWSON, MD suitability for the position WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 8 8
Permissible disability-related inquiries: Informing the applicant of the employer's attendance or punctuality requirements, and asking if the applicant can BALTIMORE, MD comply (with or without reasonable accommodation). BETHANY BEACH, DE BETHESDA, MD COLUMBIA, MD For truly essential functions: asking about the applicant's [TITLE] DEARBORN, MI FALLS CHURCH, VA ability to perform the functions (with or without LEXINGTON, KY reasonable accommodation) OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA DO NOT ask whether the applicant has a disability that TOWSON, MD may affect his or her ability to do the job WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 9 9
Questions about salary history? Pay Equity and Transparency laws in 8 states limit BALTIMORE, MD inquiries into salary history and/or considering BETHANY BEACH, DE salary history when setting compensation BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI Salary history will not justify disparities FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD Questions about salary EXPECTATIONS are okay. PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 10 10
Background Checks What to run? Don’t seek more information than needed BALTIMORE, MD BETHANY BEACH, DE Some State restrictions on credit checks BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI FALLS CHURCH, VA When to run? Ban the Box restricts: LEXINGTON, KY OCEAN CITY, MD Timing on criminal background inquiries PITTSBURGH, PA ROANOKE, VA Timing on asking applicants to complete background check forms TOWSON, MD WASHINGTON, D.C. Timing of running criminal background checks WILMINGTON, DE [Lawyer] [email] | 11 11
The Job Offer Always provide a written offer letter BALTIMORE, MD Advise if subject to further conditions: BETHANY BEACH, DE BETHESDA, MD Background check, drug screen, employment COLUMBIA, MD [TITLE] DEARBORN, MI eligibility FALLS CHURCH, VA LEXINGTON, KY Specify salary and benefits OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA Include at-will statement TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 12 12
Key Steps in Background Check Process 1. Whether and when a background check can be run BALTIMORE, MD 2. Disclosure and Authorization/Consent Forms BETHANY BEACH, DE BETHESDA, MD 3. Consideration of Information -- Disqualification/Screening COLUMBIA, MD [TITLE] DEARBORN, MI 4. Pre-Adverse Action Letter FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD 5. Reasonable Waiting Period PITTSBURGH, PA ROANOKE, VA 6. Individualized Assessment TOWSON, MD WASHINGTON, D.C. 7. Adverse Action Letter WILMINGTON, DE [Lawyer] [email] | 13 13
Ban the Box – States with laws covering private employers California New Jersey BALTIMORE, MD Connecticut Oregon BETHANY BEACH, DE BETHESDA, MD District of Rhode Island COLUMBIA, MD [TITLE] Columbia DEARBORN, MI Vermont FALLS CHURCH, VA Hawaii LEXINGTON, KY Washington OCEAN CITY, MD PITTSBURGH, PA Illinois ROANOKE, VA TOWSON, MD Minnesota WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 14 14
It’s Not Just about the “Box” Remove questions about criminal background from BALTIMORE, MD employment applications BETHANY BEACH, DE BETHESDA, MD Limits on when background checks can be ordered COLUMBIA, MD [TITLE] DEARBORN, MI Job solicitations and advertisements FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD Workplace postings PITTSBURGH, PA ROANOKE, VA Individualized assessments required TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 15 15
Drug Testing and Legalized Marijuana Why Drug Test? BALTIMORE, MD Negligent hiring practices BETHANY BEACH, DE BETHESDA, MD Reasonable suspicion COLUMBIA, MD [TITLE] DEARBORN, MI Safe and Drug-Free Workplace Act FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA Accommodations needed? ROANOKE, VA TOWSON, MD States with protections for marijuana use WASHINGTON, D.C. WILMINGTON, DE Safety first [Lawyer] [email] | 16 16
BALTIMORE, MD BETHANY BEACH, DE BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 17 17
BALTIMORE, MD BETHANY BEACH, DE Executive Compensation BETHESDA, MD COLUMBIA, MD [TITLE] DEARBORN, MI FALLS CHURCH, VA LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. Eileen Morgan Johnson, CAE, Partner WILMINGTON, DE Whiteford, Taylor & Preston, LLP [Lawyer] [email] | 18 18
Executive Compensation Ralph has been promoted to BALTIMORE, MD the Executive Director position. BETHANY BEACH, DE How should the Board BETHESDA, MD COLUMBIA, MD [TITLE] determine his compensation DEARBORN, MI FALLS CHURCH, VA package? LEXINGTON, KY OCEAN CITY, MD PITTSBURGH, PA ROANOKE, VA TOWSON, MD WASHINGTON, D.C. WILMINGTON, DE [Lawyer] [email] | 19 19
Executive Compensation - Board’s Role Adopt compensation policy BALTIMORE, MD Hiring – negotiate total compensation package BETHANY BEACH, DE BETHESDA, MD Annual adjustments COLUMBIA, MD [TITLE] DEARBORN, MI Based on Board evaluation of CEO FALLS CHURCH, VA LEXINGTON, KY Tied to goals/benchmarks being met OCEAN CITY, MD PITTSBURGH, PA Bonuses should be earned and not routine ROANOKE, VA TOWSON, MD Discourage bonus based on % of net revenues WASHINGTON, D.C. WILMINGTON, DE CEO should determine compensation of staff [Lawyer] [email] | 20 20
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