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Expert Employers: Absenteeism & the Americans with Disabilities Act (ADA)

For decades, employers enjoyed very wide latitude in disciplining and firing employees for attendance problems, even if the absenteeism was the result of illness or injury. That latitude has been significantly altered since the passage of the Americans with Disabilities Act (ADA) in 1990. Let’s explore how some of the policy implications of the civil rights law play out in the workplace. Don’t forget the ADA applies to nonprofit employers too, and non-compliance is not an option!

ADA Coverage

The ADA protects only “qualified individuals with a disability.” Disabilities as defined under the ADA can mean either physical or mental impairment that substantially limit one or more major life activities. It can also mean an individual who has a record of such an impairment or is regarded as having such an impairment.

A qualified individual must be able to perform essential functions of the job, with or without reasonable accommodation. What’s a reasonable accommodation? It may include the following (but is certainly not limited to):

Making existing employee facilities readily accessible for use by persons with disabilities
Modifications to work schedule
Job restructuring
Appropriate reassignment to a vacant position
Acquiring/modifying equipment or devices
Adjusting/modifying examinations, training materials, or policies
Providing qualified readers or interpreters

Tension Between ADA and Absenteeism

It can be difficult when an employee is absent for a health reason, and co-workers must pick up the slack, or the work simply goes unfinished. But, the employer risks violating the ADA if the company terminates or disciplines such an employee without first considering whether the employee is a “qualified individual with a disability.” If the answer is yes, the employee does fall under the ADA umbrella, then the employer must consider whether they can reasonably accommodate the employee. An employer is required to make a reasonable accommodation to the known disability of a qualified employee, if it would not impose an “undue hardship” on the employer’s operation. Yet another term that sounds ambiguous at its face, undue hardship is defined as an action requiring significant expense or difficulty with regard to things like the structure of its operation, employer’s size, financial resources, and nature of the industry.

Employers are NOT required to make an accommodation if it would mean lowering quality or production standards. (They’re also not required to provide personal items for use, like hearing aids.)

Of course, not all persons with a disability will need the same kinds of accommodation. Some examples relating to absenteeism include:

Abe was diagnosed with cancer and will be absent as he undergoes chemotherapy.
Betty has a chronic medical impairment in the form of diabetes and will need to attend related medical appointments in regular intervals.
Charlie deals with major depressive disorder, and a recent exacerbation of symptoms means he’ll need time to recuperate.
Diana will also need time to recover from surgery for her chronic back condition.

Practice Pointers

To control attendance problems without violating the ADA, you should:

Evaluate each situation (that is, whether the employee is qualified, disabled, or whether you can provide a reasonable accommodation) on a case-by-case basis while acting as consistently as possible with past practice and in accordance with your attendance policy;
Have a written attendance policy that emphasizes the necessity of good attendance, but also provides you with flexibility that you might need to accommodate a qualified individual with a disability;
Maintain accurate records of all absences, including a separate and confidential file for any medical certifications or medical information relating to an employee’s absences;
Be aware of the interplay between business/nonprofit policies and state and federal laws; and
Call your attorney when you have questions about your duties under the ADA. The saying, “An ounce of prevention is worth a pound of cure,” is smart to keep in mind!

Smart Employers Seek Advice

Again, nonprofit employers, remember the ADA applies to you too! The ADA can be a complex law, and it can get even trickier when trying to accommodate appropriately for absenteeism, while balancing business/nonprofit operations. Know you don’t have to navigate it alone. Questions? In need of counsel? Don’t hesitate to contact me.

April 12, 2019/by Gordon Fischer

(Legal) Word of the Day: Quid Pro Quo

Charitable Giving, From Gordon's Desk..., Legal Word of the Day

You’ve probably heard it before on your favorite law show or movie court case, but do you know what “quid pro quo” actually means?

Quid pro quo (“something for something” in Latin) means an exchange of goods or services, where one transfer is contingent upon the other.

Quid pro quo can have different meanings in different areas of the law. For instance, we typically hear this phrase in relation to employment law. So, in the arena of philanthropy and nonprofits, what does quid pro quo mean?

A charitable donation is deductible to the extent the donation exceeds the value of any goods or services received in exchange. So what happens when you donate to your favorite charity and receive something tangible in return? This is the issue of “quid pro quo” in charitable gift law.

Quid Pro Quo Example

If a donor gives a charity $100 and receives an opera ticket valued at $40, the donor has made a quid pro quo contribution. In this example, the charitable contribution part of the payment is $60. The donor is entitled to a charitable deduction for $60, but not the entire $100.

Both the donor and donee have a responsibility here. The donor, of course, can only deduct the cost of the donation less the value of the goods/services received. The charitable organization must provide their donors clear, written documentation of the value of donations.

In fact, in these quid pro quo situations, under IRS rules, the nonprofit must provide a written disclosure statement. This required written disclosure statement must both:

• Inform the donor that the amount of the contribution that is deductible for federal income tax purposes is limited to the excess of any money (and the value of any property other than money) contributed by the donor over the value of goods or services provided by the charity.

• Provide the donor with a good faith estimate of the value of the goods or services that the donor received.

Free Consultation

Thinking about making a donation or looking for guidance regarding gift acceptance at your nonprofit, no quid pro quo is required! I offer a free one-hour consultation, with absolutely no obligation. I can always be reached by email at Gordon@gordonfischerlawfirm.com, and by phone at 515-371-6077.

March 5, 2019/by Gordon Fischer

Legal Word of the Day (Brought to you by Sam Nunberg): Subpoena

Legal Word of the Day

The language in which much of the law is written and conducted in can be downright confusing…it’s not called legalese for nothing! Even basic words, like property and trust, can take on varied and more specific meanings than their normal everyday meanings. But other words and phrases are a part of most adult Iowan’s peripheral lexicons if even from watching shows like The Good Wife or the nightly news Certain events or people can also spark an interest in legal-based terminology. For instance, many more people have now heard of the legal term “inclusion rider” thanks to Frances Dormand’s Best Actress acceptance speech at the recent Academy Awards. We’ve seen plenty of headlines featuring the word “subpoena” in the news cycle recently particularly in relation to a former outspoken Trump aide. It’s one of those words you kind of know, or think you may know, but again aren’t for sure. In order to better understand what’s going on with special counsel Robert Mueller’s investigation on Russia’s interference in the 2016 elections, let’s review what the legal term “subpoena” really means and if you can simply ignore it or refuse to cooperate if you want to…looking at you, Sam Nunberg.

What Does Subpoena Mean?

A subpoena is a formal court-ordered command to do something specific. There are two main, different kinds of subpoenas. (Quick phonetics lesson: the “b” is silent and the “poe” makes a long “e” sound.”) We’ll use the former Trump campaign aide (and defendant in a Trump lawsuit) Sam Nunberg as an example throughout.

Subpoena duces tecum

One type, subpoena duces tecum, demands you present a kind of tangible evidence like a physical item or document. For instance, a subpoena could request letters, photographs, emails, audio recordings, video footage, and text messages related to the case. (In fact, as a practical matter, a subpoena duces tecum will generally request all these items).

In the case of Sam Nunberg, the subpoena requested documents and communications dating back to November 2015 with people related to the scope of the investigation such as Donald Trump, former campaign advisor Roger Stone, Trump’s lawyer Michael Cohen, and former chief strategist Steve Bannon, among others. The subpoena was issued by a grand jury. (Grand jury reminder: a prosecutor establishes a grand jury to determine if there is enough probable cause, or evidence, to pursue a criminal case.) Earlier this week, Nunberg said in an interview he “objected to the subpoena because it asks for information about people whom he either never talked to or with whom he had close relationships.” Nunberg also asserted that it wasn’t fair for the investigation to demand his personal communications and that his emails weren’t relevant to the investigation.

An excerpt from Nunberg’s subpoena | The New York Times

Subpoena ad testificandum

The other type of subpoena is ad testificandum, which compels a person to give their oral testimony at a specific time before an authorized legal body, such as a court, congressional/legislative body, grand jury, or government administrative agency. Before such a subpoena is issued, the person or group seeking information will typically first seek testimony on a voluntary basis. (For example, Trump’s White House attorneys have provided the investigation team with voluntary testimony.)

In the two-page subpoena, Nunberg was also requested to appear before a federal grand jury testimony and deliver oral testimony this Friday, March 9.

Subpoenas & Enforcement

Quite literally the word subpoena is derived from the similar Latin term sub poena which means “under penalty.” This makes it pretty obvious that there are penalties involved if you don’t do whatever is requested without a valid reason. If you receive a subpoena and you don’t cooperate with the (presumptively reasonable) request, you could be held in contempt of court and/or hit with time in jail and/or a fine.

Relating this back to our infamous subpoenaed headliner—when Nunberg was asked by MSNBC if he was worried about being arrested for defying the subpoena, he didn’t seemed concerned and said, “I think it would be really, really funny if they wanted to arrest me because I don’t want to spend 80 hours going over emails I had with Steve Bannon and Roger Stone.”

If no proper legal reason was asserted by Nunberg’s attorneys, and he failed to testify in front of the federal grand jury, prosecutors could ask a judge to grant a bench warrant for Nunberg’s arrest.

Can You Refuse a Subpoena at all?

Some scenarios allow you to present a valid legal defense against complying with the subpoena. You can claim the subpoena’s request(s) is overly taxing or too expansive in scope. You could also refuse if the material(s), info, or data requested is eternally lost, or is privileged in nature. (Think attorney-client, executive, or physician-patient privilege.) Another avoidance tactic for a subpoena in criminal cases is asserting it violates your Fifth Amendment right not to incriminate yourself. (This, however, would still require you to show up, you just wouldn’t have to answer questions). Of course, these efforts aren’t always successful, and the subpoena could still be enforced.

In short, Nunberg’s defense of “screw that” without anything to back it up, is not a proper excuse.

In the latest reporting on Nunberg, apparently he’s indicated he will now cooperate with Mueller and comply with the subpoena.

Subpoenas are serious legal documents and always require serious legal advice. It’s important to seek counsel from a trusted attorney if you get served with a subpoena, most especially if you want to deny a subpoena request.

Applicability of this Knowledge to Nonprofits

You may be thinking, “wow, this is all really interesting, and thanks so much, but what the heck does this have to do with nonprofits?”

It’s true that the mission of Gordon Fischer Law Firm is to promote and maximize charitable giving in Iowa.

Realize that nonprofits can receive subpoenas, too! And they do!

Remember, as was stated earlier, subpoenas can be issued not only by grand juries, but also by government agencies. So, if a disgruntled ex-employee complains, you might receive a subpoena from, say, OSHA, or the Department of Labor, or the Iowa Civil Rights Commission. It’s critically important that if this happens to you, or your fave nonprofit, you understand all the legal rights and responsibilities by contacting appropriate counsel.

Questions? Thoughts? Tell me in the comments section below or contact me via email or phone (515-371-6077).

March 7, 2018/by Gordon Fischer

4 Tips for Effectively Managing a Monthly Giving Program

Nonprofits

In pretty much any industry—finance, business, health care, marketing, etc.—you can and should always be learning. For me, continuous learning often translates into better advice for my clients, especially on trends and new technologies within my main areas of service. One of my favorite ways to do this is to attend webinars presented by subject matter experts. Recently I attended one such presentation, hosted by NonProfit PRO, entitled “Effectively Managing a Monthly Giving Program That Exceeds the Thousand-Sustainer Mark.”

This subject is super interesting and important for nonprofit leaders, but nonprofit leaders are notoriously busy, so I took notes for you! Read on for the four main takeaways for managing a monthly giving (or monthly sustainer) program. The information presented was directed toward large giving programs, but much of it applies to any giving program, regardless of number of donors or nonprofit size.

Background

Monthly giving (or sustainer) programs can be the lifeblood of nonprofit organizations. These types of programs enlist, encourage, and facilitate regular donors—think automatic monthly or quarterly charitable donations. They are a definite best practice within the fundraising mix as they provide predictable funding and more engaged donors at a high retention rate. These types of programs also produce higher average annual gifts and can be mission critical for net revenue. Needless to say, monthly giving programs are extremely valuable and should be managed accordingly.

Be Dedicated to Donor Care

Your monthly donors are valuable and are going to be who help sustain the organization’s operations and key programs. Take care of prospective donors as if they are donors already. What does this mean?

Start at the beginning of “the funnel” and walk through the entire process of what joining your organization looks and feels like. Be honest about your sign-up process and review any barriers to entry. Your nonprofit is likely going to spend more money to bring regular donors into the fold, but the value of an invested sustainer is immense in the long-term. Make it just as easy to sign-up to be a donor, as it is to be a part of something—a movement, an initiative, a solution.

Taking care of your donors means paying attention to intentions. For instance, a donor might accidentally create two accounts, or a donor may make a large gift they intended to be a one-time donation, but registered it as monthly. The organization’s staff need to be available, organized, and equipped to facilitate requests to change whatever was set-up initially. If a donation situation seems strange or you have immediate questions, be proactive and contact the donor. Donors will feel the best about continuous giving if they’re able to donate exactly as they intended.

Taking care of donors means being prepared to be excellent communicators. If you’re running a donor drive or launching a new campaign, expect an increased number of calls, emails, and even social media messages from prospective donors. First of all, make contact information easily accessible. Equip all staffers that may have contact with prospective donors with FAQs, and other information they may need, including flexible phone and email scripts, so that messaging is clear and conducive to the campaign and overall mission.

Taking care of donors means that they need to feel engaged and part of the team from the get-go. This can look different at every organization, but common examples include a progression of on-boarding “welcome emails,” gift acknowledgement/thank you letters, and branded content they can share on social media.

Deliver a Personalized Experience

Collect data from your donors across all platforms and use it to deliver as much of a personalized experience as possible, with targeted messaging via social media and e-newsletters, direct mail, and engaging phone calls. One idea from the presentation was to follow up with donors with an update on the topic that encouraged them to become a donor in the first place. For example, let’s say Jill Donor joined as a monthly donor as a result of a specific campaign featuring the story of a little boy who would directly benefit from increased giving to the nonprofit. It would be smart to target Jill Donor with an update on that same little boy a few months later, and illustrate how her donation made a difference and will continue to do so.

This is, of course, easier said than done, especially for nonprofits that source donors from multiple platforms. To that point, you’ll want all your data systems “speaking” to one another, regardless of which specific systems your organization operates with. If your systems are not centralized or properly organized, it could be detrimental. For example, you wouldn’t want to accidentally send an automated “lapse in giving” letter to an individual who has been one of your regular, steady donors of two years.

This advice goes not just for your information technology systems, but also personnel systems. Staffers involved with donor care should be able to view all available information on a single donor in a single centralized contact file.

Pay Attention to Trends & Analytics

On its front, donor management may not seem like a data-centric field. Yet, data plays an extremely important role in gaining insights into the state of your sustainer programs. Define your key performance indicators (KPIs) and create reports and graphs that make it easy for other organization stakeholders to view trends over time. The webinar experts suggested the following main KPIs:

Attrition: Who is falling off and when? This should provide some information to the bigger question: “Why are sustainer accounts declining at all?” (Hopefully you don’t have to ask this question at all, but if you do, you want to plug in the numbers for who, when, and why.)
Credit card updates: This KPI refers to credit card updater systems that automatically edit donor credit card information when the card expires or otherwise. It should measure if the credit card update service/system employed is working effectively. How many cards could not be accurately updated?
Chargebacks: How many and for what amount did chargebacks to credit cards occur? Negative trends here could indicate a flawed process that requires updates.
Reactivation: How many donors reactivated after previously cancelling a regular donation?
Deactivation: How many donors canceled from the sustainer program?
Average monthly gift: How much are donor gifts averaging?
Online sign-ups: How many people are registering as repeat donors and where are they coming from—social media, e-newsletter, search engine, directly from the website, direct mail (send recipients to a shortened and tagged URL that will indicate how many people came from each letter campaign.) etc.?
Cost to acquire: What’s the average spend in exchange for donor acquisition?

Ability to track all or some of these will likely depend on the size and capacity of your organization. If your nonprofit is small just focus on a couple main KPIs for donor management. Use your historical KPI data to set goals and expectations for coming periods.

Know When You’re Getting Paid

The webinar speakers used this phrase “know when you’re getting paid,” to discuss the important topic of billing capabilities.

One subject discussed were the differences and advantages of different billing options. If possible, offer your donors a variety of options for billing, so it’s tailored to their intent. But, not every organization will be able to offer a selection, so you choose between the merits of monthly/fixed-day (billing on the same day of each month, regardless of when the donor initially registered) and anniversary (each invoice is the same day of the month the donor registered).

Credit card payments are typically one of the easiest ways for donors to register, but know that the average nonprofit will see 15 to 30 percent of all credit cards payments declined due to failure to renew. That means that either a donor didn’t update their billing info, or a credit card updater system you pay for failed to update automatically. If possible, keep track of what cards are about to expire and then reach out to the donor directly. This is a good time to reconnect with the donor, discuss initiatives, and explain how an increase in giving could further along the mission.

Be sure to offer the ability to accept as many different types of payments as possible. To that point, and to surpass the many complications credit cards can present, the webinar leaders also recommended exploring options for ACH (Automated Clearing House Network) payments. ACH, as you may already know, is a network that facilitates electronic money transfers. ACH payments can be as fast as a wire transfer and the banking info required doesn’t tend to change or expire like credit cards do. However, ACH payments are subject to strict policies, so just be sure to adhere to the rules and regulations if you’re going to offer this option.

Finally, know when you’re going to actually have access to donated funds and at what amounts. This impacts cash flow and budget development and execution.

Don’t Delay Effective Management

Successful fundraising can and should involve sustainer giving programs, as they can be incredibly successful and rewarding for both the organization and donor alike. But, if you don’t implement effective donor-centric tactics as well as data organization and analysis from day one, you are at risk of losing your sustainers before you even start.

https://www.gordonfischerlawfirm.com/nonprofit-policy-special-10-form-990/

In addition to the four main points, I would also like to add that that having sound, quality policies and procedures in place can make all the difference for effective management, let alone legal compliance. I’m offering a deal for 10 important policies asked about on Form 990. Policies like a gift acceptance policy fit in as an important piece of the fundraising puzzle.

Questions? Thoughts? Advice from your own experience with monthly sustainer programs? Comment below or reach out via email or by phone (515-371-6077).

February 25, 2018/by Gordon Fischer

Read GoFisch: Last Newsletter of 2017

From Gordon's Desk..., Newsletter

The December edition of GoFisch is live! Give GoFisch a read for:

Link to the top four most popular blog posts of 2017
A review of the firm’s successes in 2017 & a look ahead at 2018
Tips for setting charitable giving goals
Last minute year-end fundraising tips
News on how the new tax bill could affect Iowa nonprofits

Like what you read? Don’t forget to subscribe.

December 31, 2017/by Gordon Fischer