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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The OSHA Legal Update at the Employment Toolkit Seminar

I recently gave the OSHA Legal Update at the Employment Toolkit Seminar sponsored by Snell. It was a fantastic turnout and, as always, it was great to engage with the audience over breakfast.  We covered a lot of topics, but I thought I would post on a few of the highlights here.

One important thing to keep in mind is when businesses think about OSHA, they oftentimes assume it must be construction-related. That is certainly not the case. Safety and health requirements are imposed on nearly EVERY business and there are detailed statutes and regulations that companies must understand to comply with the law.

So, to start the morning, we chatted for a while about recordkeeping. (I can hear the collective yawn over the internet, but there are actually some interesting points, so read on!)  First and foremost:

All employers covered by the OSH Act must orally report to OSHA the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident within eight (8) hours.

Then, there’s the Forms 300, 300A and 301 for work-related injuries and illnesses. Employers with more than ten employees who are not one of the partially-exempt industries are required to complete these.  One point that is always worth raising is that the company executive who certifies the 300A form must be either: (1) an owner of the company (only if a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.  The 300A form with the data from the previous year has to be posted at the establishment from February 1 to April 30th.

Here are some fun facts that we discussed for those in Arizona.  In FY2013, there were 1,164 inspections, which was a 9.7% increase from FY12.  655 were construction inspections. ADOSH conducted 66 discrimination/retaliation investigations in FY 2013.

**The fun thing about these facts are that I am pretty sure they are right, but I didn’t count these things myself, so I can’t guarantee just about anything.

AND I introduced my brand new Top 10 Ways to Protect the Company During an OSHA Inspection business card.  You can read the Top 10 List here, or if you would rather just have your own Top 10 List on a handy business card, send me an email and I will send some your way.

And, since it’s Arizona and it is already getting hot outside, we talked about heat stress. Here are some points every company should keep in mind:

  • At least one pint of water is needed per hour.
  • Frequent rest periods should be taken in shaded areas.
  • Employees (including all temp employees) need training regarding signs and symptoms of heat stroke.
  • Supervisors need to frequently check employees.
  • Protective clothing that provides cooling should be worn.
I am always looking or excuses to include amazing Arizona photographs. Here is one by the talented Rolf Maeder. You can check out more of his work at http://RolfMaederPhotography.com

I am always looking for excuses to include amazing Arizona photographs on my blog.  All it took was my reference to Arizona to decide that I needed to post yet another one!  Here is a phenomenal picture by the talented Rolf Maeder. You can check out more of his work at http://RolfMaederPhotography.com


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The Ninth Circuit Said What About Designating FMLA Leave?

human resources keyboard buttonOk, I will admit it. I have read the FMLA regulations from front to back… several times. An even bigger admission – I actually enjoy reading the regulations.

While managing FMLA leave is not exactly a walk in the park, the regulations are actually quite refreshing. They make sense. They might not answer every question, but they can get you most of the way there if you are willing to spend the time to navigate your way through the tiny print.

Then comes the recently published decision in Escriba v. Foster Poultry Farms, Inc.  This case relates to the appeal of an FMLA interference claim, but deals squarely with the issue of whether an employee may refuse to exercise FMLA rights (i.e., whether an employee can decline to take FMLA leave for absences that are otherwise FMLA-qualifying).  The Ninth Circuit explains that the Act does not expressly state whether an employee may decline or defer exercising FMLA rights.  The regulations, on the other hand, squarely put the requirement on the employer to designate FMLA leave.  This suggests it does not matter whether the employee wants to take FMLA leave or not.  The employer must appropriately designate the leave.  Ahh, I love the regulations.  Seems clear cut, right?  Wrong.

The new wrinkle in it all is that the Ninth Circuit concluded in Escriba that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The Court pointed to an area of the regulations that require an employer to ascertain whether FMLA leave is being sought.  This provision is related to the requirement that the employer has to figure out more about the reason for leave (through the certification process, etc.), and the fact that the employee does not have to specifically walk in to HR and say, “I would like to request FMLA leave, please.”

If you thought managing intermittent leave was difficult, think about the practical problems this creates – an employee can arguably save up FMLA leave and take non-FMLA leave days off that otherwise would have qualified as FMLA leave.  Now, the employee has an FMLA-bank for a rainy day even though that same employee may have just taken a few weeks of sick days.  And, following Escriba, how does an employer enforce its policy that paid days off must be taken concurrently with FMLA leave?  What does a company do when an employee is being wishy-washy about whether he or she wants to take FMLA leave?  Do they now have to engage in a letter-writing campaign to ascertain how the employee feels about FMLA leave on any given day?  This case could result in an employee taking way more leave than he or she is entitled and, for those employees who don’t fully understand the Act, they could potentially lose out on job protection (it’s not absolute, but hey – it helps) if they decline FMLA leave. This truly makes this case a lose-lose for employers and employees.

An employer can still enforce its attendance policy against employees who miss work and decline FMLA coverage.  However, it is murky waters for employers because if a company does not properly designate leave as FMLA qualifying, my reading of the regulations (29 C.F.R. 825.301(a)) is that the employer did not fulfill its duty.**  Now, Escriba teaches that companies must ignore that duty and, in many instances, do what the employee asks.

If a company is within the jurisdiction of the Ninth Circuit – such as Arizona – this case is troubling.

**Although, one colleague recently pointed out that the Ninth Circuit trumps my personal opinion; therefore, I suppose I will leave it at that.

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Meeting the New ADOSH Director

photo-149Last week I attended the OSHA presentation at Snell given by Bill Warren, the new Director of the Arizona Division of Occupational Safety and Health.  The presentation was aptly titled “Meet the New Director,” and it provided just that – the perfect opportunity for industry leaders to hear from Bill first-hand.

For those following facts and figures – in FY2013, there were 1,164 inspections, an increase from the previous year, and 655 of them were in the construction industry.  Also, there are currently 35 employers in the ADOSH Volunteer Protection Program which provides consultation for employers.  Quite frankly, I am surprised there aren’t more companies signed up for the VPP.  For those who don’t know what it is, the VPP is a voluntary (hence the “V” in VPP) program that companies may apply to participate in.  Participating companies then receive consultation services, such as: on-site safety and health surveys and the development and review of safety and health programs, among other benefits.  Citations and penalties are not assessed during this audit process.  Bill also confirmed that the consultant does not notify the compliance section of ADOSH – thus, the consultants are truly there to assist the company with improving workplace safety.  ADOSH further explains requirements for the applicants as follows:

In Arizona, an applicant must have an average injury incidence rate and lost workday rate for a three-year period that is at or below the national average for the employer’s industry and a comprehensive safety and health program that is and has been in effect for at least one year. A worksite must ensure management commitment to worker safety and health protection, a written safety and health program, worksite analysis of existing or potential hazards, hazard prevention and control, safety and health training, employee involvement in safety and health activities and annual program evaluations. In addition, there must be formal signed statements from any collective bargaining agents indicating their support of the VPP application.

VPP participants are exempt from programmed inspections while they maintain their VPP status.  Being part of the VPP sure seems like a win-win to me.

Bill also talked about the whistleblower protections – ADOSH conducted 66 discrimination investigations in FY 2013, and he also touched on some of the significant investigations.

The hour was time well-spent.

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It’s THAT Time of Year Again…

3d person with christmas treeDecember is the time for so many things. In Arizona, it’s when I actually start wearing my winter coat* (although, I’ll admit it got cold a little early this year). It is time to decorate the house for the holidays and perhaps even break out the Elf on the Shelf. And, yes, it is even time for companies to update their policies and employee handbooks and also ensure that all required posters are… posted.

Employers constantly evaluate what needs to be updated, but there is something about the month of December that serves as a reminder to those who keep moving these updates to the end of the to-do list. I will be the first to admit, it is easy to move “update employment documents” to the end of the line when there are much more pressing issues. However, it is important to ensure that changes in the law are reflected in the policies – in some instances it means the difference between being able to assert an affirmative defense or not – and to ensure that the policies reflect what the company actually does.

When it comes to the required posters, each company has to take a close look at its own business to determine what needs to be posted pursuant to federal and state law.  The poster requirements vary based on the number of employees the company employs, the location the employees perform work, the industry the company is in, whether the company is a federal contractor, and the types of individuals who are employed.

In Arizona, for example,** employers are required to post certain posters, including those addressing constructive discharge, employment discrimination, minimum wage, no smoking (in color and in a conspicuous location at all entrances and visible from the outside), safety and health protection on the job (on 8” x 14” paper), unemployment insurance, work exposure to bodily fluids, work exposure to MRSA, spinal meningitis, and TB (for all employers whose employees may receive significant exposure to MRSA, spinal meningitis or TB in their regular course of employment), and workers’ compensation.

Employers have to determine whether additional postings are required under federal  law, including: OSHA Job Safety and Health, Employee Polygraph Protection Act Notice, E-Verify (participating employers), Fair Labor Standards Act poster on Minimum Wage, Right to Work (for right-to-work states), Uniformed Services Employment and Reemployment Rights Act poster for Non-Federal Contractors/Employers, National Labor Relations Act poster on Employee Rights [Appellate courts have temporarily enjoined the NLRB's rule requiring the posting]; (15+ employees) Equal Employment is the Law – including Title VII, ADA, ADEA, EPA, and GINA; (20+ employees) COBRA; (50+ employees) FMLA; and so on.

Poster requirements frequently change and posters are updated often.  Companies need to replace and update posters throughout the year and post in languages of the individuals reading the posters.  Happy Posting!

* Yes, I said “coat” not “coats.” I only own one winter coat. It gets worn the five or six days a year when it is freeeeeezing (i.e., 40 degrees or below).

** And if it’s not totally clear, this article is not intended to be the end-all-be-all of the posters each company needs (or doesn’t need) to post. Do your own research or, better yet, consult with legal counsel.

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