For the Arizonans – Fantastic Local Organizations

desert Arizona landscapeAs readers of Employment and the Law know, I try to focus the blog posts on issues that impact Arizonans the most. After posting several years worth of employment law articles and best practices (where has time gone??), I wanted to take a minute and highlight some fantastic local organizations. I realized I have a diverse group of Arizonans who follow my blog who are not only as passionate about employment law as I am, but ALSO equally involved in our community. Here are the three organizations I wanted to highlight. Drum roll please…

image002Colleen’s Dream Foundation is an organization that supports ovarian cancer research for early detection and improved treatment. I had the honor of meeting the woman behind The Dream when I was – of all things – taking the bar exam in 2007 (it turns out this post is law-related!). 2007 also turned out to be the same year that Colleen was diagnosed with ovarian cancer. A superstar mom of four daughters, as well as a daughter, sister, and friend to many, Colleen was the inspiration behind The Dream.

At Colleen’s Dream Foundation, we feel it is important to raise money for research that will lead to reliable early detection testing and improved treatment for ovarian cancer. Because so little is known about ovarian cancer in proportion to other women’s health issues, we have an incredible opportunity for research and education.

We are working with some of the top research hospitals and universities that are researching ovarian cancer.  Offering seed funding ($5,000-$10,000 grants) to young investigators, we will fund cutting-edge research by some of the brightest, young minds in the world.

Readers of my blog know that- if there is an infographic – it will find its way to this blog. One thing that is great about Colleen’s Dream is that the organization not only works to fund groundbreaking research, but also works to bring awareness to women who might not otherwise know the signs and symptoms of ovarian cancer.

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If you want to get involved, plan on going to their signature event- an annual Golf Tournament and Evening of Dreams in February of each year. It is truly among the best events of the year, and it makes you feel all warm and fuzzy inside** because it’s for a great cause. And there’s also Kicking for the Dream, a project that engages young kicking specialists in an effort to raise awareness and fundraise for ovarian cancer research. There’s no doubt you’ll be hearing more and more about this project and likely even see many of the players at the Evening of Dreams.

Valley Youth Theatre. This is where talent meets cute meets hard work and fun. Valley Youth Theatre holds auditions all year long for kids 7 to 19 to perform in the organization’s musicals and plays. And these productions are TOP NOTCH. Their past season included classics like Snow White & the Seven Dwarfs, Peter Pan, and the Winnie the Pooh Christmas Tail.

Founded in 1989, Valley Youth Theatre (VYT) is a professional-quality theatre company dedicated to helping young people achieve their full potential through meaningful engagement, education, and excellence in the performing arts.

I simply can’t imagine a better place for kids to learn the performing arts, build friendships with other children, and get out of the summer/winter/fall/spring heat (yes, all four seasons have heat).

Maricopa Community Colleges Foundation. I have been on the Board of the MCCF for several years now. The Foundation is a 501(c)(3) nonprofit organization designated by the Maricopa Community Colleges to receive and manage gifts on behalf of the ten colleges, two skill centers and numerous education centers dedicated to educational excellence and meeting the needs of the businesses and citizens of Maricopa County.

Amber Cruz (left) is the first recipient of the Snell & Wilmer Leader Scholarship!

Amber Cruz (left) is the first recipient of the Snell & Wilmer Leader Scholarship!

Annually, the Colleges educate more than 250,000 students. Many are completing the first two years of a four-year degree while thousands of others are readying themselves for entry into the workforce through state-of-the-art career programs. Since the Foundation’s inception in 1977, more than $21 million in grants and scholarships have been awarded.

The Foundation’s scholarships are wide-ranging and impactful. To give a few examples, I have heard first-hand how they have permitted working single mothers to attend a few classes at a time and still pay the mortgage, they have allowed underrepresented students to be the first in their families to graduate college, and allowed students to attend focused classes to develop their trades.

This past year I spoke at the Heroes of Education dinner, which honors those who have a proven personal and professional commitment to supporting students and educational opportunities. The 2014 recipient was Vince Roig, Founding Chairman of the Helios Education Foundation. For those who are wanting to get involved, mark your calendars – the 10th Heroes of Education Dinner will be on April 16, 2015 at the Sheraton Downtown Phoenix Hotel.

**Speaking of “warm and fuzzy,” the cutest dog in the world was auctioned off to a good home at the Colleen’s Dream 2014 gala. To make it EVEN sweeter, Neil Rackers and his wife won the puppy, but when another person approached Neil at the bar and told him that his wife really wanted the dog, they BOTH agreed to make the full donation of the winning auction amount to Colleen’s Dream and Neil gave the gentleman the dog to take back to his wife. How sweet is that? Double the donations for a great cause!

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Labor and Employment State Bar Convention

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photo_4-87There are so many big developments in employment law that I feel like I am playing catch-up with my posts, but I couldn’t skip the post about the Labor and Employment Section’s all-day seminar at the State Bar Convention in Tucson. The Convention was at the Westin La Paloma Resort and Spa. As usual, the L&E crowd had an all-day program planned for the Friday of the Convention.

Fun Fact:  In Tucson, attendance at the Convention usually averages around 1,200 (with about 500 to 600 more attendees in Phoenix).

Some of the highlights include breakfast with William Gould, a professor at Stanford and former Chair of the National Labor Relations Board. He was a speaker and also joined in a superstar panel discussing employment issues in sports law. My favorite panel was the data and privacy chat with Dan Oseran, Privacy Counsel from eBay, and Becky Winterscheidt a partner at Snell & Wilmer. We discussed privacy policies for HR, the risks with BYOD, litigation implications (i.e., challenges with the collection of documents for discovery), and even touched on employee data in the EU.

photo_3-118Anyway, the point of this post isn’t to recap everything I learned from the Convention but, instead, to convince the readers who don’t regularly go to start going. I just completed Chairing the CLE Committee of the L&E Section of the State Bar, and truly believe the programs our section offers are invaluable- for knowledge, networking, and just getting out of the office and seeing a pretty view (…take a look at my pictures below).

The view from my room at the hotel.

The view from my room at the hotel.

Same view. Same day. Different time.

Same view. Same day. Different time.

Mark your calendars, the Convention next year is June 24-26, 2015 at the Arizona Biltmore Resort & Spa. What that really means is that on June 26 I will be playing chess on the life-sized chess board on the lawn of the Arizona Biltmore. It never gets old. And if it gets hot, the pool is a few feet away. And, of course, I have no doubt the Section’s program will continue to be top notch.

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Yet Another Reason to Prohibit Texting While Driving

If there wasn’t reason enough to ensure that employees refrain from texting while driving so that they do not endanger themselves or others, OSHA has reminded employers that the employer has a legal responsibility to prohibit texting while driving. “It is a violation of the OSH Act if employers require workers to text while driving, create incentives that encourage or condone it, or structure work so that texting is a practical necessity for workers to carry out their job.”  OSHA has even published a Distracted Driving Brochure and dedicated a portion of its webpage to the topic.

If companies have not already, this is the perfect opportunity to revisit policies – including the Bring Your Own Device (BYOD) policy, Company Vehicle Policy, and any policy addressing communications.

The OSHA brochure states vehicles should be declared as “text-free zones,” and there should be clear procedures, times, and places for drivers’ safe use of texting (i.e., not while driving).

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The Department of Labor Proposes to Redefine “Spouse” in the FMLA

The Department of Labor has proposed to redefine “spouse” under the FMLA in light of the Supreme Court’s decision in Windsor, striking down DOMA.  The FMLA provides unpaid leave for eligible employees to care for their spouse due to the spouse’s serious health condition, if the spouse is a covered servicemember and has a serious illness or injury, and for a qualifying exigency related to the military service of the spouse.

The old regulations looked to the employee’s state of residency and how a husband or wife is defined pursuant to that state’s law.  The new regulations look to the law of the jurisdiction in which the marriage was entered into (including for common law marriages) as opposed to the law of the state in which the employee resides.  Further, the FMLA now expressly includes same-sex marriages in addition to common law marriages.  At the time of the publication, nineteen states and the District of Columbia extend the right to marry to both same-sex and opposite sex couples.

Therefore, even if the employee lives in a state that does not recognize same-sex marriage, there will be FMLA coverage for the employee, provided that the marriage was legal in the “place of celebration” where it occurred.

The Department proposed to define spouse in the following manner:

Spouse, as defined in the statute, means a husband or wife.  For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State.  This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Once the regulations are final – and assuming no changes are made from the proposed revisions – no forms will be impacted.  Likewise, the Department of Labor’s forms remain optional. That being said, policies and procedures may need to be updated to reflect the current state of the law.

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What About the Volunteers?

It seems like these days we hear all about interns – are they properly classified? Do we have to pay them? But what about volunteers?

If a company or nonprofit has volunteers, it MUST evaluate whether it is properly classifying them (i.e., whether they should be paying them).

Ok, so where do we start? As a general rule, employees may not volunteer services to for-profit, private sector employers. So, if your employee comes to you and says, “I’d love to volunteer at the IT help desk on the weekends. I just love it in that area. I don’t even have to be paid! I will agree, in writing, that I am just a volunteer!” No. They can’t. Therefore, you can’t.

There are three exceptions to the general rule: volunteers for (1) state or local government agencies; (2) private non-profit food banks; and (3) religious, charitable, civic, or humanitarian purposes related to non-profit organizations. Breaking down those three exceptions, it basically means that:

(1) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—

(a) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

(b) such services are not the same type of services which the individual is employed to perform for such public agency.

Public sector employees may volunteer to do different kinds of work in the jurisdiction in which they are employed, or volunteer to do similar work in different jurisdictions.

(2) Then there’s the food bank exception: The term “employee” does not include individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks even if they receive groceries from the food banks.

(3) Last, is the non-profit exception. An individual who performs work (usually on a part-time basis) may be considered a volunteer, provided that individual does not displace employees; performs work for public service, religious, or humanitarian reasons; and such work is performed without promise, expectation, or receipt of compensation for services rendered.

There you have it. A brief digression into the world of volunteers.

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