Legal Potpourri (Round 2): 6 Questions and Answers for Your Nonprofit

We previously took a look at six legal situations nonprofit leaders regularly encounter, so now we’re looking at six more. As we continue to explore the many legal questions nonprofit organizations face on a daily basis, keep in mind: What you learn in a one-hour webinar or a guide you grabbed at your local bookstore (or even in this space) can never substitute for consulting your organization’s attorney when various potential legal issues arise. But it doesn’t hurt to have some working knowledge of nonprofit employment law.

Let’s get to it:

1. Should your nonprofit have a written “work from home” policy?
Yes. Working from home (or telecommuting) is becoming a more and more popular option in workplaces across the country. According to a 2015 Gallup poll, 37 percent of U.S. workers have telecommuted, four times greater than the 9 percent who did in 1995. As with other workplace policies, putting the work from home policy in writing can protect your nonprofit from potential claims of disability, age or gender discrimination, among others. Employees should be treated equally. Also, keep in mind that the process for requesting work from home as a reasonable accommodation for a documented disability should be clear.

2. Must an employee be pregnant in order to raise a valid claim of pregnancy discrimination?
No. This may be a bit surprising. Application of the Pregnancy Discrimination Act (PDA) was recently addressed in Snider v. Wolfington Body in October of this year. In this case, the employer challenged the applicability of the PDA where the female employee claimed her company failed to rehire her because of a previous pregnancy, and because there was a chance she may become pregnant again. The court denied the company’s motion to dismiss the complaint.

3. Can an employee of a nonprofit use Family Medical Leave Act (FMLA) leave to pursue a side business if his or her nonprofit salary is not allowing the individual to make ends meet?
No. If you are a human-resources professional at your nonprofit organization, you are probably scratching your head in disbelief right now as you consider why an employee would even make such an argument. But this happened recently in a Middle District of Pennsylvania case, Dietrich v. Susquehanna Valley Surgery Center. The court held that the plaintiff failed to establish that he had a serious health condition, when he tried to use FMLA leave due to “sadness and depression” brought on when he had to take on a second job. The court noted that it was reasonable for his employer to expect his attendance at work on a consistent basis.

4. Can you pay nonprofit staff members or board members commission for fundraising activities?
No. Unlike for-profit businesses, paying commissions or bonuses for fundraising or sales is unethical for nonprofits. The Association of Fundraising Professionals prohibits its members from receiving commissions
to dissuade individual and contract fundraisers from using high-pressure tactics on potential donors for personal gain.

5. Are there key legal responsibilities for nonprofit board members?
Yes. Among other legal responsibilities, board members must:

• Take care of the nonprofit by ensuring prudent use of all assets—including facility, people and goodwill—and provide oversight for all activities that advance the nonprofit’s effectiveness and sustainability.
• Make decisions in the best interest of the nonprofit corporation, not in the board member’s self-interest.
• Ensure that the nonprofit obeys applicable laws and acts in accordance with ethical practices; that the nonprofit adheres to its stated corporate purposes; and that its activities advance its mission.

6. Should the nonprofit organization have an insurance policy to cover the volunteer activities board members carry out on behalf of the organization?
Yes. The Nonprofit Risk Management Center offers many resources, including free online tutorials that are useful for educating board members on insurance for nonprofits and risk management. Visit councilofnonprofits.org for more information on this topic.