Getting It Right:Hiring Basics Including Legal Dos and Don'ts

Elizabeth Reinhardt, Esq.Law Offices of Elizabeth S. Reinhardt, Esq.

Partner

Saleha WalshInsource Services, Inc.

Vice President

Presented by:

LAW OFFICES OF ELIZABETH S. REINHARDT

Saleha WalshVice President, Insource Services, Inc.

Insource Services, Inc.

What We Do:

• Full department outsourcing - generally part-time and long-term

• “A la carte” services

• Assessments

• Trainings

• Project/interim assignments

How We Do It:

• Seek to understand client businesses and mission

• Experienced, expert senior account leaders

• Account team with multiple skill levels; work is performed at the most cost-effective level

• Approximately 75 employees

Insource Services, Inc.

Presented by:

Elizabeth Reinhardt676 Elm Street, Suite 300

Concord, MA 01742www.lizreinhardtlaw.com

ereinhardt@lizreinhardtlaw.com(978) 464-9003

Law Offices of Elizabeth S. Reinhardt, Esq.

http://www.lizreinhardtlaw.com/mailto:ereinhardt@lizreinhardtlaw.com

Working exclusively with clients in the nonprofit sector...

“We understand nonprofit organizations and bring a depth of knowledge in legal practice areas meeting the everyday needs of the clients we serve including: start-up counsel to emerging nonprofits, outsourced ‘in-house’ counsel services, nonprofit mergers, dissolutions and acquisitions, state and federal regulatory representation, and probate court actions on behalf of charitable fiduciaries and beneficiaries.”

Liz Reinhardt began her career as an Assistant Attorney General in the Massachusetts Division of Public Charities. She has worked with nonprofit organizations, including nonprofit corporations, charitable trusts, and religious organizations, as a trusted lawyer, regulator, advocate, consultant, educator and board member for over 20 years.

Law Offices of Elizabeth S. Reinhardt

Session overview

• Hiring Do’s and Don’ts• Recruitment process• Applications and Interviewing Basics• Making the Offer• Sources of Law

• An Act to Establish Pay Equity• MA Non-Compete Agreement Act• MA Personnel File Law• Criminal Offender Record Information• 2019 Paid Family and Medical Leave Law

Getting it right from the start:

• Creates a professional working relationship

• Avoids misunderstandings down the road

• Protects your association from liability and future employment claims

Hiring Do’s and Don’ts

• Do take time to prepare a careful and comprehensive job description. This forms the basis of the employment relationship and platform for future performance evaluation.

• Do understand key legal concepts and communicate them consistently from the beginning:

• W-2 Employee vs. 1099 Independent Contractor

• “At Will’ vs. Contract employees

• Full time – Part time – Exempt – Non exempt.

• Do demonstrate respect toward all potential employees by modeling a nondiscriminatory, legally compliant hiring process at all levels of the organization.

• Do ensure compensation is earned, fair and reasonable and consider comparability data.

Hiring Do’s and Don’ts

• Do follow IRS ‘safe harbor’ protocol in establishing compensation for executive management if your association is a 501(c)(3) exempt organization.

• Do consider offering final employment contingent upon satisfactory appropriate background checks.

• Do ensure employees are bound to your association’s confidentiality, privacy, harassment, social media and other policies through Handbook acknowledgement or offer letter attachments.

• Do consider ‘work for hire’ and remote worker agreements as necessary.

DON’T WING IT.

Hiring Do’s and Don’ts

Interviewing Areas to Avoid and Why

• It is best to avoid discussing or inquiring about any personal characteristics of candidates that may define them as a member of a protected legal class. Focus only on gathering the information that is job relevant.

• It’s safe to assume that all questions that are asked should serve some legitimate purpose and that hiring decisions are made on the basis of the answers given.

• Intention does not matter, if you ask non-job specific questions, you may be creating legal risk.

Examples of Areas to Avoid

ColorReligion or creedNational origin or ancestrySexRaceSexual OrientationGender identityAge Family status

Physical or mental disabilityPregnancyCriminal record Victim of sex offenseDomestic violenceVeteran statusGenetic informationCitizenship

What You Can Do

Prepare in advance for the interview – individually and as a group:

• Analyze the duties, functions, and competencies relevant to the job you are recruiting for.

• Standardize your interview questions so they are objective and relate specifically to those duties, functions and competencies required.

• If multiple interviewees, each interviewer should have a specific focus.

• Ask the same general questions consistently – don’t ask different questions that can be viewed as targeted to that candidate demographic.

By simply asking questions in a different way you can find out the info you want to know

How To Ask Questions - Examples

Place of Birth/Ethnicity or ReligionDon’t ask: What country are you from/where were you born?Do ask: Are you eligible to work in the U.S.?Don’t ask: Which religious holidays do you observe?Do Ask: Can you work on the days/schedule required for this role?Marital Status, Children or Sexual PreferenceDon’t Ask: Do you have or plan to have children?Do Ask: Are you available to work overtime on occasion? Can you travel?Don’t Ask: How many children do you have? Do you have childcare in place if need to work out of hours?Do Ask: This job may require some overtime work on short notice. Is this a problem for you? What days/hours are you available to work?

How To Ask Questions - Examples

Gender/AgeDon’t Ask: How do you feel about managing men/women, younger/older employees? Do Ask: Tell me about your previous experience of managing staff, any challenges you may have had in managing a variety of staff.Don’t Ask: How much longer do you plan to work before you retire?Do Ask: What are you long term career goals?Don’t Ask: When did you graduate?Do Ask: Do you have a degree or other qualifications related to this role?LocationDon’t Ask: How far would your commute be?Do Ask: Are you able to arrive at a client site by 9:00 am.?

Other Considerations

• Hiring is marketing to all of the candidates you don’t hire, do it well and respectfully – provide a great experience

• Have systems and standards – they make you look and work better

• Use tools and templates that can be customized

• Involve a team, check references

• Consider an interactive approach– are they a fit for your needs; are you a fit for them.

• The job ad as a tool to collect resumes – does not have to be perfect

• Job description – this should be detailed and cover all major functions of the job including physical requirements

• Application forms – time savers and organizational protection (be aware of new pay equity act restrictions)

• Collects basic data in a standard format – dates of employment, employment contacts, role, education and other experience

• Candidate signs to attest to the validity of all information provided

• Allows for quick assessment of legal eligibility, salary expectation, alerts in prior jobs, reasons for leaving prior jobs, etc.

• Provides a chance to focus on the conversation vs. the background facts

Hiring Basics

The Application

• The rules of the application

• Using it as a useful behavioral tool

• Why use an application – isn’t the resume enough?

Using the Application to Gain Insight on the Candidate

• Some common applicants and what they MAY be telling you:

• The non-compliant applicant

• The “see my resume” applicant

• The messy or lazy form completer

• The diligent applicant

What Are They Telling You

• I am “above” your process

• I am not use to completing applications but I’m happy to provide more complete information

• I don’t care about how you do things

• I do not intend to be transparent

• I am adaptable and respect your process

• None of the above

How to Use an Application Form

How to Use an Application Form

How to Use an Application Form

EDUCATION

SCHOOL Name/Location Course of Study Highest Level

Completed

Graduation &

Degree Received

High School

Trade or

Vocational School

College/University

Graduate School

Other

Please describe honors received and extracurricular activities. You may exclude organizations, the name

or character of which indicate its members’ race, sex, religion, national origin, age, ancestry, sexual orientation

or any other category protected by state or federal law. _______________________________________________________________________________________________________

_______________________________________________________________________________________________________

_______________________________________________________________________________________________________

_______________________________________________________________________________________________________

Specialized Skills: __________________________________________________________________ Please include computer skills, machine operation skills and written and spoken languages to the extent such information is job-related.

MILITARY RECORD

Have you ever served in the Armed Forces? Yes No

If yes, please identify your Branch and final rank _______________________

Do you have skills and experience pertinent to the position for which you are applying? Yes No

Please explain ______________________________________________

__________________________________________________________

LEGAL INFORMATION

Massachusetts employees: It is unlawful in Massachusetts to require or administer a lie detector test as a

condition of employment or continued employment. An employer who violates

this law is subject to criminal penalties and civil liabilities.

How to Use an Application Form

• Ask about existing post−employment restrictions −−"restrictive covenants" (e.g. non−competition andnon−scolititaiton obligations)

• Catch-all bullet point in job descriptions

• Retention of hiring documentation

• Requests for accommodation

• Onboarding documentation

• Orientation and training

Hiring – Additional Points

Sample new hire checklist

Name:_____________________________________________

I-9 documents W-4 M-4

Benefit Summary

Handbook Acknowledgement

Harassment Acknowledgement

Personnel Action Form

Health Plan Enrollment Form/Plan Description

Dental Enrollment Form/Plan Description

New Employee COBRA Form

Health & Dental Insurance Waiver Form

Model Exchange Notice

403b Plan/Enrollment Information

Sample New Hire Checklist, Continued

Disability Plan Description

Direct Deposit Form (include voided check)

Payroll Deduction Form

MA FMLA Disclosure

Resume Application Signed Offer Letter Emergency Contact Form

I acknowledge that this process has been completed and the employee has received copies of the benefit plan descriptions listed above via email or hand delivery.

Date HR Admin Signature

Offer LettersVia Email

Date

First Name, Last Name

Address

City, State, Zip Code

Email

Dear Mr./Ms. Last Name:

On behalf of COMPANY, I am pleased to confirm the terms of your employment offer as follows:

• You will be employed on a full-time, regular basis as a TITLE with a start date on DATE. This offer is contingent upon a satisfactory standard reference and background check.

Please complete the attached background check authorization form and scan/email to me

as soon as possible.

• In the TITLE position you will be responsible for the functions outlined in your job description, plus such other duties as from time to time may be requested of you by

COMPANY.

• Your compensation, before any voluntary deductions or statutory withholdings, will be $XXX per biweekly pay period (if annualized would equate to $XXX). Such

compensation may be adjusted from time to time in accordance with normal business

practice and at the discretion of COMPANY.

• You may participate in any and all benefit programs that the Company establishes and makes available to its employees, provided you are eligible under (and subject to all

provisions of) the plan documents governing those programs. We have attached a summary

of the benefit programs available to you for your reference.

Offer Letters, Cont.

• You are eligible for 15 days of paid time off per calendar year to be taken at such times as may be mutually convenient and approved by the company. The number of paid personal

leave days for which you are eligible shall accrue at the rate of 2.31 hours per pay period

that you are employed during the calendar year.

• Your employment with COMPANY is at-will. This means that both you and COMPANY remain free to terminate the employment relationship, with or without cause, at any time,

with or without notice.

By signing this letter, you confirm that you are not bound by any employment contract,

restrictive covenant or other restriction preventing you from entering into employment with

COMPANY or in carrying out your responsibilities for the position. This offer of employment

supersedes any other written or verbal offer made on behalf of the company.

We hope you find these terms acceptable, and that your employment with COMPANY is enjoyable

and rewarding. Please signify your formal acceptance of this position by signing a copy of this

letter and returning it, along with the background check form, to me as soon as possible.

We look forward to working with you. Please let me know if you have any questions.

Sincerely,

Name

Title

Offer Letters – Signature Page

We look forward to working with you. Please let me know if you have any questions.

Sincerely,

Name

Title

Attachments

The foregoing correctly sets forth the terms of my employment with COMPANY.

__________________________________ ______________________

NAME Date

Personnel Action Form

NOTICE OF PERSONNEL ACTION

Name: Title: Social Security #

Supervisor Emergency contact & # Effective Date

HIRE Hourly /hr. OR Salary /yr. Other

CHECK ONE FOR EACH CATEGORY

FT PT (Specify Hours)

Regular Temporary Exempt Non-Exempt

COMMENTS:

SALARY CHANGE From / Yr. To / Yr.

year/hour year/hour

REASON:

Cell Phone Number: ________________

D.O.B

Vacation Accrual

STATUS CHANGE TITLE CHANGE: From:

To:

OTHER:

TERMINATION VOLUNTARY INVOLUNTARY

Lack of Work

VACATION OWED For Cause

REASON:

Last Day Worked: APPROVALS: Immediate Supervisor Date HR Date President Date Copies to:

HR Employee Supervisor

1. Train all personnel involved in the hiring process - no salary inquires, illegal inquiries, your organization’s interview process. (Third-party recruiting firms must also comply.)

2. Consider consistent organizational representation in all interviews to assess culture compatibility and for checks and balances in the process

3. Review employment offers as well as non-compete/non-solicitation and/or confidentiality provisions

What Should Employers Do?

Sources of Law

The 2018 Massachusetts Noncompetition Agreement Act established comprehensive requirements for creation of legally enforceable Noncompetition Agreements between employers and departing employees.

BASICS

What is a Noncompetition Agreement?

• “..an agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employee after the employment relationship has ended.

Massachusetts Noncompetition Agreement Act (MNAA), M.G.L. c. 149, §24L

What is the Debate?

Public policy vs. legitimate business interests, particularly in certain sectors

Who does the MNAA cover?

Broadly speaking: Employees and Independent Contractors

But not:

Non-exempt employees

Laid off or terminated without cause

Under age 18

PT undergraduate or graduate students

Why consider a Noncompetition Agreement?

A Noncompetition Agreement can be important to protect legitimate business interests in (1) trade secrets; (2) confidential information; and (3) the employer’s good will.

Massachusetts Noncompetition Agreement Act (MNAA), M.G.L. c. 149, §24L

Massachusetts Noncompetition Agreement Act (MNAA), M.G.L. c. 149, §24L

What are the requirements for a legally binding Noncompetition Agreement?

Among the MNAA’s many requirements:

● In writing signed by both parties

● Supported by consideration

● Reasonable and narrow in scope

● limited to 12 months duration

What isn’t covered by this law?

● Confidentiality and Nondisclosure agreements

● Non-solicitation agreements (i.e. not to solicit or transact business with

the employer’s customers, clients, or vendors).

RESOURCES

https://www.mass.gov/info-details/massachusetts-law-about-noncompetition-

agreements

https://www.mass.gov/info-details/massachusetts-law-about-noncompetition-agreements

The Massachusetts Equal Pay Act (MEPA) is intended to combat gender discrimination in the workplace and reduce the wage gap between men and women. In 2018 the Massachusetts Act to Establish Pay Equity, went into effect updating MEPA.

BASICS

The key provisions are:

• Equal pay for “comparable work” and the factors which may legally justify “variations in wages”;

• Prohibition on “pay secrecy policies” and rules for using salary history in the hiring process;

• Penalties for non-compliance; and

• “Self-evaluations” of compensation practices as a defense to liability.

RESOURCES

Attorney General Maura Healey is charged with enforcing the Pay Equity Act.

Her office has a dedicated web page with guidance for employees and employers:

https://www.mass.gov/massachusetts-equal-pay-law

Massachusetts Act to Establish Pay Equity, M.G. L. c. 149, § 105A

https://www.mass.gov/massachusetts-equal-pay-law

Criminal Offender Record Information (CORI), M.G.L. c. 268, § 1.

Criminal Offender Record Information (CORI) regulations govern criminal history screening of prospective and current employees, subcontractors, vendors, volunteers and interns and others.

BASICSCORI checks may be part of a general background check for employment

• may only be conducted as authorized by the DCJIS and MGL c. 6, §. 172, and • only after a CORI Acknowledgement Form has been completed by a prospective or

current employee;• definition covers employees, volunteers, contractors, vendors• employer must have a CORI policy in place to guide internal review process

iCORI is the state website giving access to Massachusetts-only criminal offender record information. Employer registration and training are pre-requisites to obtaining CORI reports.

RESOURCEShttps://www.mass.gov/criminal-record-check-serviceshttps://www.mass.gov/files/documents/2017/09/05/iCori%20Organizational%20Training.pdfhttps://www.mass.gov/files/documents/2019/03/18/CORI%20booklet%20FINAL.pdf

https://www.mass.gov/criminal-record-check-serviceshttps://www.mass.gov/files/documents/2017/09/05/iCori%20Organizational%20Training.pdfhttps://www.mass.gov/files/documents/2019/03/18/CORI%20booklet%20FINAL.pdf

Massachusetts Personnel Record Law, M.G.L. c. 149, § 52C

The Massachusetts Personnel Record Law permits all current or former employees to request and obtain a copy of their personnel file.

BASICS

• Employer must respond within five business days to an employee’s written request.

• Employer must provide the employee with a paper copy of the personnel file and also the opportunity to view the records at the place of employment during normal business hours.

• The term “personnel record” is defined broadly.

• If over 20 employees, personnel files must contain specific materials.

• Exception to disclosure for information of a personal nature about a person other than the employee, if the disclosure of such information would constitute an unreasonable invasion of that other person's privacy.

Massachusetts Personnel Record Law, M.G.L. c. 149, § 52C

TRAP FOR THE UNWARY

An employer must notify an employee within ten days of placing in the employee's personnel record any information that has or may be used, to negatively affect the employee's qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.

An employer and an employee may agree to remove information from a personnel record.

Paid Family and Medical Leave Law, M.G.L. c. 151A, § 1

Paid family and medical leave will be available to workers in Massachusetts starting in 2021 under the new Paid Family and Medical Leave

(PFML) law going into effect July 1, 2019. A new MA Department of Family and Medical Leave (DFML) has been established to oversee this program.

HIGHLIGHTS

►Most private employers will need to provide employees (including 1099 contract workers) with paid family and medical leave - up to 12 weeks for eligible employees to care for a family member - and up to 20 weeks for the employee’s own serious health condition.

► Benefits will be paid for using employee contributions through payroll withholding and contributions from larger employers (over 25 employees).

►Employers with 25 or more employees will be required to remit a contribution to the Department of Family and Medical Leave of 0.63 percent of eligible payroll.

► Employers can opt out with an alternative benefits plan.

•Paid Family and Medical Leave Law, M.G.L. c. 151A, § 1

IMPLEMENTATION Implementation of this law will be a rolling process, but Employers need to take some steps now:

By June 30, 2019:► post a workplace notice;► give individual notice to continuing workers and obtain signed

acknowledgments;► give individual notice to new employees within 30 days of start date and

obtain signed acknowledgments;

As of July 1, 2019: ►begin tax withholding from each covered individual's wages.►employer contributions for larger employers begin effective July 1, 2019 and

1st quarterly installment due October 31, 2019 to MassTaxConnect.

Consider updating Handbook or policies to track new law.

Paid Family and Medical Leave Law, M.G.L. c. 151A, § 1

IMPLEMENTATION Post July 1, 2019

• Final regulations issue (est. July 1, 2019)• Plan exemption applications due (September, 2019)• 25+ Employer 1st Q payments due (October 2019)• Most types of leave available to workers (January 2021)• All types of leave available to eligible workers (July 1, 2021) Paid Family

and Medical Leave Law

Paid Family and Medical Leave Law, M.G.L. c. 151A, § 1

RESOURCESPayroll companies and DFML will be important sources of information as the law goes into effect:

The DFML website: https://www.mass.gov/orgs/department-of-family-and-medical-leave

WorkpPlace Notice: https://www.mass.gov/files/documents/2019/03/21/20190321_DFML%20Notice_FINAL.pdf

Employee Notices:https://www.mass.gov/guides/a-guide-to-paid-family-and-medical-leave-for-massachusetts-employers#-notifying-your-workforce-

High level summary of employer responsibilities:https://www.mass.gov/files/documents/2019/05/13/DFML%20Employer%20FastFacts.pdf

https://www.mass.gov/orgs/department-of-family-and-medical-leavehttps://www.mass.gov/files/documents/2019/03/21/20190321_DFML%20Notice_FINAL.pdfhttps://www.mass.gov/guides/a-guide-to-paid-family-and-medical-leave-for-massachusetts-employers#-notifying-your-workforce-https://www.mass.gov/files/documents/2019/05/13/DFML%20Employer%20FastFacts.pdf

Question & Answer

Contact Information

Saleha Walsh Vice President

Insource Services, Inc.swalsh@insourceservices.com

781-374-5103

Elizabeth ReinhardtAttorney

Law Offices of Elizabeth S. Reinhardtereinhardt@lizreinhardtlaw.com

978-464-9003

mailto:swalsh@insourceservices.com

Thank You