Small businesses and non-profits have had a lot to worry about this year. Not surprisingly, many small business owners and non-profit directors have been asking about ways to protect themselves from lawsuits related to COVID-19. Will a customer or employee try to sue us if they get COVID? Will a waiver protect us from this type of litigation?
In response, the Ohio General Assembly passed H.B. 606 “to make temporary changes related to qualified civil immunity for health care and emergency services provided during a government-declared disaster or emergency fund and for exposure to or transmission or contraction of certain coronaviruses.” So what does this mean for small businesses or non-profits who are wondering about their potential liability if someone claims they were exposed to COVID-19 at your place of business? And what other liabilities are out there waiting to trap the unwary?
This week we continue our series on Essential HR Policies with a look at time off and paid leave. As a small business or non-profit, you might be worried that giving your employees paid time off is simply too expensive. On the other hand, you fear that you won’t be able to compete for the best talent if you don’t offer the kind of time off and paid leave policies that are offered by much larger corporations. And these fears are compounded by not knowing what the law actually requires versus simply wanting to be a great place to work.
This week, we continue our series on Essential HR Policies by taking a closer look at what should be in your employment files.
Common Record-Keeping Mistakes
Most of our clients run their business or non-profit because they are pursuing a passion, not because they enjoy record-keeping. But failing to keep thorough and accurate payroll records makes it impossible for you to complete timely and accurate tax filings (including issuing W-9s or 1099s at the beginning of the year) which can expose you to penalties and late fees. And the lack of records means you can’t defend your organization from claims of unpaid wages, salary, or overtime.
When it comes to running a functional and productive workplace, drugs and alcohol can cause any number of problems: lost productivity, excessive time off, workplace accidents, employees behaving badly while under the influence, etc. As we keep reiterating in this series, as an employer, you can be held vicariously liable for everything that your employees do when they are acting in the course and scope of their job duties. And if you think this is just a problem for someone else’s small business or non-profit, think again. Statistically, substance abuse is more of a problem at smaller businesses than larger ones precisely because small businesses are less likely to have drug-free workplace policies in place.
Add in the trend towards legalizing marijuana and small businesses can find themselves caught in a tough place. There’s a tension between being a “friendly” small business employer and making sure your employees can do their best work. After all, you’re not trying to be traditional, “stuffy” corporate America, but you don’t want to face a lawsuit caused by an employee’s bad behavior (especially one caused by an employee being under the influence while on the job).
There are a wide range of laws that cover how you as an employer treat your employees at every step in the employment process: from hiring, firing, promotions, harassment, training, wages, and benefits. And as an employer, you can be held vicariously liable for the actions of your employees, meaning if you “allow” or don’t prevent harassment or discrimination in your workplace, you could find yourself and your business or nonprofit named in a discrimination lawsuit. By putting the right anti-harassment and non-discrimination policy in place (and following it), you will be able to show that you acted appropriately to prevent discrimination and respond to workplace harassment.
And these aren’t just issues for “big” business. Yes, accusations at larger companies make headline news, but for every case you read about against a large corporation, there are several less reported cases against small businesses and non-profits. Not only do these cases take precious time away from your business (not to mention the emotional toll litigation can take on you personally), but they are also incredibly expensive to defend. The problem seems especially prevalent in family-owned businesses where non-family members often feel they are being treated differently and unfairly or that they cannot speak up against one of the family members who is engaging in unwanted behavior.
The bundle of rights associated with the concept of “copyright” exists from the moment a work is created in a fixed form. However, those rights generally belong to the creator or author of the work. So what happens when that author is someone you are paying to create the work for you, your business, or non-profit?
Enter the concept of “works made for hire.” If a work meets the legal requirements to be considered a work made for hire, then the employer will be considered the author of the work even if an individual employee was actually the original creator.
What are the legal requirements for works made for hire?
"Just because you call it a 'work made for hire' doesn't make it so."
Regardless of size, every business or nonprofit with employees needs to have certain policies in place. In this series, we’ll be discussing what you need to know when putting these policies into place. But first, which policies should be considered essential, whether you’re hiring your first employee or you’re dusting off an old employee handbook that desperately needs updating?
As a small business owner or non-profit director, you probably already had a lot on your to do list before Coronavirus became a global pandemic. As we all adjust to the rapid changes in our daily lives and businesses, it’s important to not panic and make well-informed decisions regarding the day to day operations of your organization. This is especially important if you manage employees who may be impacted by the announcement of an extended spring break for schools throughout the state.
Time and Attendance: Sick Leave and/or PTO as a Small Business
Even before Coronavirus broke, many small business owners found it difficult to offer sick leave or paid time off. It’s difficult to pay someone to not work when you are sacrificing your own pay to build a business. And it can be burdensome to ask a small team to pick up the slack when someone is out. But in times like this, when lives are at stake, it’s important to prioritize health and safety:
As your business grows, it’s inevitable that you’ll need extra help. And often, you’ll need this help before your business can really afford to hire extra help. Enter: Unpaid Internships. Your small business gets free labor, and the intern gains valuable experience for their resume and (hopefully) a good reference for later on down the road.
But like so many things, the law isn’t so simple. All employees are entitled to at least minimum wage under the Fair Labor Standards Act (FLSA), and the FLSA determines who is an employee (regardless of what you might call the worker). So the question for you as a small business owner is whether or not your intern will be considered an “employee” under the FLSA.
Non-Profit Caveat: While most of our blog posts apply equally to both for-profit and non-profit entities, this one is an exception. The Department of Labor recognizes that individuals may freely volunteer their time to non-profit organizations. Because of this, unpaid internships are generally permissible in the non-profit sector. However, non-profit organizations should still be careful with paying stipends because they can call into question whether the person is still a volunteer or is now an employee.
Hiring a new employee is an exciting time for any business. But it can also be a legal minefield, especially when you don’t have a dedicated HR professional or department. Once you find your next great hire, should you send them an offer letter or an employment agreement? What’s the difference between the two? And what legal risks should you be aware of, regardless of whether you decide to send an offer letter or an employment agreement?