A checklist to make sure you are covered with employment law best practices for nonprofits and associations.

1.  Workwithexperiencedadvisorswhocanunderstandandancipateyourlegalneeds.
 Becarefulaboutborrowingdocumentsandpoliciesfromyourfriends(orpullingfromtheinternet).
 Decisionsaboutwhomtohire,whatemploymentdocumentstouse,whenemployeesshouldbe
terminated,howtoaractandretaingoodemployees,andhowemployeesimpactanemployer's
"brand"arenotcommoditydecisions.
 Anounceofprevenonisworthapoundofcure.
 Treatemployeeswithrespect.
 Createaneffecvehiringchecklist.
 Updatelistofjobinterviewquesons.
 Updatelistofreferencequesons.
 Establishanduseproperjobapplicaonforms.
 Centralizereferencechecking(makesurethatreferencesarefullycompletedbeforejobofferismade).
 Createacommieethatevaluatesallhiringdecisionsbeforeacandidateishired.
 Workwithexperiencedadvisorstodeterminewhetherbackgroundchecksshouldbeusedasacondion
tohiringemployees.
 Reviewandupdateexisngjobdescriponstoensureexemptornon-exemptstatus.
 Createnewjobdescriponsfornewposions.
 Establishasoundconfidenalityagreement,whichmayincludepost-employmentrestricons.
 Establishanduseperformanceplans.
 Use mesheetcerficaonformsfornon-exemptemployees.
 Useanacknowledgementformfortheorientaonprocessthatexplainsovermepolicies.
 Updateovermepoliciestospecificallyincludetheproceduresforworkingovermeandlanguagetothe
effectthatnosupervisorisauthorizedtoinstructemployeesnottorecordallofthehourstheyworked.
 ReviewEmploymentPraccesLiabilityInsurance(EPLI)insurancewithanexperiencedprofessional.
 Trainmanagersonhowtoproperlyevaluateemployees.
 Updateemployeehandbookstoincludesocialmedia,computerusage,nobullying,useofpersonal
devices,andotherkeypolicies.
 Consideraseparatehandbookformanagers.
 Becarefulaboutusingindependentcontractors.
 Analyzewhyemployeeshavele overthepast3to5years.
 Treatallemployeecomplaintsseriously.
 Establishandfollowproceduresforinvesgangemployeecomplaintsandterminangemployees.
 Establishpoliciesandproceduresforvolunteers.
 Connuetosearchforwaystocustomizetheemployeeexperiencetoensureemployeesareproperly
challengedand,whereappropriate,haveaccesstoviablecareeropportunies.
EmploymentLaw
BestPracticesforNonprofits
ByMarcR.Engel|EmploymentAttorney
mrengel@lerchearly.com
lerchearly.com

2. I. THE ROLE OF A SUPERVISOR/MANAGER
A. A SUPERVISOR/MANAGER'S STATUS WITHIN THE ORGANIZATION
1. A Supervisor/Manager's Legal Status as a Representative of the
Organization
2. A Supervisor/Manager's Status within the Organization Itself
B. THE FUNDAMENTAL SKILLS OF AN EFFECTIVE LEADER
1. Selecting Great Employees
2. Coaching Your Employees
a. Mentoring
b. Evaluating skills and abilities
c. Developing talent
d. Disciplining employees
e. Effective communication
II. PRACTICAL STEPS FOR IMPROVING HIRING DECISIONS,
ADDRESSING PERFORMANCE ISSUES SUCCESSFULLY, AND
IMPROVING RETENTION
A. HIRING
1. The Relationship of Workplace Behavior Problems to the Hiring Process
a. Many performance problems can be linked to poor planning at the hiring
stage
b. The importance ofhaving an effective employment application form
c. The importance ofpreparing the interviewers
d. The importance ofmaking the hiring process objective.
2

3. 2. Pre-Employment Issues in General
2553375.1
a. Employment Application forms (resumes)
1. Reveal "gaps" in employment
2. Fortify "at-will" doctrine
3. How to "read" application forms
b. Job Descriptions
1. Serves as "blueprint" for job and guide for evaluations
and future career growth
2. What should job descriptions include?
a. Technical competencies
b. Education requirements
c. Experience requirements
d. "Emotional competencies"
3. Job descriptions may determine "essential functions" of position for
purposes ofthe Americans With Disabilities Act
c. Interview Process
I. Two fundamental decisions
a. Applicant's evaluation ofjob and work environment
b. Potential applicant's suitability for job
1. Courts and administrative agencies will generally assume
that any information obtained (directly or indirectly) during
an interview was used as the basis for a hiring decision
2. Golden rule
a. Solicit only job-related information that is important to making the
hiring decision
d. Interview Planning - a structured interview process is the best defense ta a
claim of discrimination
I. Prepare list of skills that candidate should have; attempt to rank skills
in order ofimportance; explore emotional competencies
3 08320.001

4. 2553375.1
2. Prepare list ofjob-related questions to ask
3. Consider scoring the applicant on each job skill/question on numeric~!
basis
4. Preparation for interviews:
a. The nature ofthe position
b. Job related skills necessary for position
c. Establishing a list ofquestions to ask applicant
d. Overview ofequal employment laws and questions to avoid
e. Information about organization to be shared
f. The importance of avoiding interviewer biases and addressing
applicant concerns
g. The importance of studying application and resume
h. Types of questions to ask - open ended and direct
1. Talking and listening; consequences of not listening carefully to
applicant
i. The 70/30 rule
J. The danger ofthe "halo" effect
e. The importance ofunderstanding permissible and impermissible questions
1. Questions regarding age should be avoided unless an employer needs
to verify that an individual has reached the requisite age of majority.
Questions which might, in a more subtle fashion (such as, when did
you graduate from high school?), elicit the same information should
likewise be avoided.
2. Questions regarding race, color, sex (including pregnancy),· and
national origin should be avoided. Title VII forbids an employer from
relying upon this information and making a hiring decision. Avoid
questions such as "where were you born?", "what type of name is
that?" and "do you speak a foreign language? (unless foreign language
is, in fact, a job requirement).
4 08320.001

5. 2553375.1
3. Avoid questions that directly or indirectly attempt to elicit information
about an individual's marital status or significant other.
4. Avoid questions regarding family planning or regarding the number of
a candidate's dependents. If an employer needs this information for
tax reasons, it can be obtained after hiring.
5. Avoid characterizing a position as suited to a particular gender, such as
"this is a typical job handled by women".
6. Avoid questions about who to contact in case of an emergency as this
may be challenged as an impermissible attempt to ascertain an
individual's marital status or sexual preference.
7. As a general matter, employers should avoid questions about the
health and physical condition of an individual. Questions regarding an
individual's disability, handicap or medical condition, which do not
bear directly upon a candidate's fitness for hire, should be avoided. In
this same vein, questions about an individual's workers' compensation .
history should be avoided.
8. Avoid questions regarding whether and, if so, where an individual
attends church. If, for example, Saturday work is required, an
employer may ask if there is any reason why a candidate cannot work
on Saturdays.
9. Avoid questions about arrests. Individuals are sometimes arrested
improperly and arrests without a resulting conviction do not establish
guilt. Avoid questions regarding convictions until a job offer is
communicated (i.e., a job offer may generally be conditioned upon a
criminal background check).
10. Questions regarding an individual's financial status should generally
be avoided.
11. Avoid questions about an individual's views towards unions or
whether an individual has ever belonged to a union.
12. Avoid asking a candidate ifhe or she is willing to take a lie detector or
polygraph test unless applicable state and local laws expressly permit
such a test to be taken.
13. Avoid questions about what clubs and organizations an individual
belongs to unless such clubs and organizations are professional in
nature.
5 08320.001

6. 2553375.1
14. Avoid questions, which would yield responses as to whether an
individual would be willing to accept a lesser rate of pay than other
employees in the proposed category of pay. The Equal Pay Act
prohibits discrimination in rates of pay based upon an employee's
gender.
f. The importance of sound interview questions
g. Candidate Evaluations
I. Listing the key job criteria and ranking candidates in an objective
manner
2. Select the best qualified applicant
3. Interview evaluation forms must be completed fully, accurately and in
a timely manner
4. Importance oftimely collaboration with other interviewers
5. Do not discuss salary with candidate unless specifically authorized to
do so by the division manager
6. Questions about benefits should be deferred to the appropriate person
in the interview chain who will be answering these questions
7. Interviewers should understand approximate time period in which
position is scheduled to be filled
h. Applicant disclosure forms
1. Finding out ifcandidate is bound by any kind ofrestrictive agreement
(i.e., noncompete, nonsolicitation or confidentiality obligation)
1. Coordinating with Human Resources
a. It is essential that hiring decisions be coordinated with the HR
Department
J. Communicating the offer
1. Subject to reference checks
2. What not to say when communicating offer?
a. "Job is permanent"
6 08320.001

7. b. "You will have this job as long as you like"
c. "The organization will not terminate you without a good reason"
3. Ingredients of a sound offer letter
k. Reference checks of candidates
I. Legal issues
Don't attempt to find out indirectly through references or non-public
social media things that you are not permitted to ask directly [i.e.,
questions about disability, workers compensation history]
2. Getting past blocking techniques of candidates
a. Reference Release forms
3. Practical suggestions
a. Use job descriptions as a guide for preparing questions to ask
of references.
b. Ask questions of references that elicit the "emotional"
competencies of the candidate: i.e., can you give me an
example of when the candidate went beyond his/her job duties
to solve a problem? can you assess the employee's loyalty?
reliability? is the individual someone who seems committed to
professional growth? personal growth? would you rehire this
employee? how would you assess his/her strengths?
weaknesses?
4. Special Note: Reference checks of former organization employees
a. Managers who receive reference inquiries about our former
employees should direct them to the HR Manager.
B. ADDRESSING PERFORMANCE ISSUES SUCCESSFULLY
1. Employee Expectations
2553375.1
a. That the employer will follow its rules and procedures.
b. That the employer will apply its rules consistently.
c. That the employer will act in accordance with applicable wage hour
requirements.
7 08320.001

8. d. That the employer will treat harassment claims seriously and not retaliate.
e. That the employer will honor its contractual agreements.
f. That the employee will be treated "fairly".
2. Employee Evaluations [Coordinate through HR]
2553375.1
a. Regular evaluations
1. Formal
2. Informal
a. Breakfast and lunch meetings
b. Anonymous surveys
c. Taking the employee's "temperature"
b. Evaluation forms
1. Evaluation forms need to track job descriptions
2. Evaluate emotional competencies
3. Taking the time to actually fill out the form
4. Ambiguous (or meaningless) evaluations
a. The relationship to raises
b. The relationship to employment claims
c. Communicating evaluation to employee
d. Documenting employment problems
1. Identifying problems early; document all significant problems
2. Writing meaningful performance action plans
a. State what is wrong with employee's performance and why it is
serious enough to justifY action (cite rule or standard violated, if
applicable)
8 08320.001

9. b. Specific examples ofperformance problems
c. Identify previous attempts to assist employee
d. Documentation must be factual and accurate
e. Outline specific expectations for future performance
i. goals must be specific, measurable, achievable and include
a reasonable time frame
f. State willingness to assist employee in any reasonable manner
g. Indicate desire to see employee succeed
h. Documentation should include language along the lines of the
following: "If there is not immediate and sustained improvement
in all of the areas identified, further disciplinary action up to and
including termination will result. We will review your status in
_ days (provide date) or sooner if applicable. However, you are
subject to disciplinary action up to and including termination at
any time."
3. Establish follow-up dates with employee to determine if improvement
is being made
3. Welcoming New Employees
2553375.1
a. New employees should be assimilated as soon as possible
b. "Retention" efforts should start when the candidate accepts the position and
starts employment
c. Employees who are not assimilated and who do not feel included are more
likely to leave the organization.
d. "Care and Feeding"
I. Meet regularly with employees and ask them about their job
2. Arrange for employees who are regularly "off-site" to visit the main
office
9 08320.001

10. 3. If possible, attempt to have employees work with several managers.
This allows the employee to be evaluated by more than one manager
and allows the employee to learn more about the organization
4. Importance of Documenting Performance Problems
a. Addressing performance problems early
b. The "snowball" effect
c. The relationship between the employee handbook, offer letter, and
employment claims (including claims of discrimination)
d. "Tying the hands" ofthe human resources department
C. PROPER HANDLING OF TERMINATIONS
1. Overview
a. The significance ofthe decision
b. As a general rule, do not terminate when emotions are running high
c. Dignity and respect at all times
d. Coordinate with HR
2. Comprehensive Rules and Regulations
a. Returning to the handbook
b. Maintaining the "at will" doctrine
3. Thorough Investigation
a. Assembling the facts
b. Justification for discipline
c. Suspension or other disciplinary action before tem1ination except for most
serious offenses
d. Consider the following potential employee claims:
1. Discrimination
2553375.1 10 08320.001

11. 2. Breach of Contract
a. Oral promises/implied contracts
b. Written promises
c. Commissions; bonuses; failure to pay all wages owed; overtime
claims
3. Wrongful discharge
4. ERISA
5. Other torts
6. FMLA;ADA
7. Retaliation
4. Communicating the decision to terminate
2553375.1
a. Dignity and respect
b. In private
c. At the end ofthe day
I. Two people present
2. Short and to the point
d. Review benefits
e. Listen to employee
f. Employee's obligation to return organization property and to maintain
confidentiality of organization information and records
g. Consider severance agreement
I. The Older Workers Benefit Protection Act
11 08320.001

12. 5. Post-termination communications
a. Neutral references
b. Reference release forms
c. Don't discuss reasons for termination with employee's counsel or with
government authorities without checking with counsel
d. Central handling of inquiries about former employees
6. Severance Agreements -- check with counsel
D. KEYS TO RETAINING DESIRED EMPLOYEES
1. Understanding the problem
a. Retention includes having to deal with problem employees
b. Retention includes creating an environment where good, talented employees
will want to stay
c. Retention problems adversely impact employee morale
d. Retention problems are a distraction
e. Retention issues are magnified in a competitive market
2. Hiring- The Root Cause of Most Retention Problems
a. Most retention issues can be traced to the hiring stage
b. Poor job descriptions and poor interviews can result in "bad fits"
c. The importance of determining ahead of time how a candidate fits into an
organization's long term business plan
3. Improving Retention
2553375.1
a. Proactive employers realize that retention/recruitment is a continuous process
and not a one time event that concludes at the hiring stage
b. Upstream planning will help employers determine what type of employees
they need now and in the future
12 08320.001

13. 2553375.1
c. Solicit feedback regularly
I. Formally
a. Evaluations
b. Exit interviews
2. Informally
a. Groups
b. Individually
c. Anonymous questionnaires/surveys
d. Know your market and competition
I. How marketable are your employees?
2. Industry standards
a. Determine how competitive your compensation system is
1. Trade associations
ii. Industry journals
111. Networking
b. Determining non-compensation factors important to employees in
your industry
1. Remember - employees, particularly younger employees, may
be willing to take less pay for better experience, training and
long term employment opportunities
c. Deal with problem employees early, effectively and fairly
d. Understanding what some have described as the new
employee/employer "compact" - namely, that employees often
look at jobs as short-term assignments that they periodically
review; if the nature of the work, pay, promotional opportunities,
flexibility, are not satisfying, they will often move to another
employer without hesitation
13 08320.001

14. Note: These materials are not intended to provide specific legal advice or opmwns
regarding any specific matter. The application of the concepts and matters discussed in
these materials are dependent upon the specific facts and circumstances of individual
situations, the application of local and state laws, and the application of controlling case
law.
Marc R. Engel, Esq. is an employment attorney and litigator at Lerch, Early & Brewer, Chartered where he co-chairs
the firm's Employment and Labor Group and is a member of the firm's Litigation Group. He advises employers of
all types of employment issues (including wage and hour and overtime issues), performs human resource audits, and
conducts training on a variety of employment issues, including strategies for defending overtime and compensation
claims, and improving hiring, performance management, retention, and avoiding discrimination and harassment
claims. He also litigates and mediates employment and business disputes and counsels clients on litigation
avoidance strategies. In 2011, Marc was listed in Washingtonian Magazine's Top Lawyers for Employment Law.
He has been recognized as a Top Rated Lawyer in Labor & Employment Law by Martindale-Hubbell, a premier
attorney rating organization. He also has been recognized as a Top Rated Lawyer by the Wall Street Journal. In
2016, Marc was selected by the American Institute of Legal Counsel as one of the "I 0 Best Employment & Labor
Law Attorneys for Maryland." For more information about human resource audits or the employment practice,
please contact Marc at (301) 657-0184 or by email at mrengel@lerchearly.com. For more information about the
firm, please visit our website at www.lerchearly.com. This article is not intended to provide legal advice as to
any specific matter.
2553375.1 14 08320.001