When Activists Become Employers: Employment Law Issues for Good Guy Organizations in Arizona

JIM BARTON

Welcome!

When Activists Become Employers: Employment Law Issues for Good Guy Organizations in Arizona

Who we are…

NLA runs capacity-building programs focused exclusively on organizations using multiple legal entities to build power, increase impact, and win.

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We’ve partnered with Arizona Wins - the 501(c)(4) Table in Arizona to run the 2022 Empower & Protect training series to share resources and tools needed to support the powerbuilding work of AZ organizations.

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• Welcome

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• Introductions & Learning Objectives

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• Training Session

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• Q&A Survey & Close

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Agenda

Core Beliefs & Norms

Core Beliefs & Norms

CORE BELIEFS

NORMS

• We believe in collaboration

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• We take a learning stance to disrupt the traditional expert-learning model

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• We recognize & name the complexity of power-building work

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• We aspire to change structural limitations

• What is said should stay here —we want to create a safe space to ask questions

• We are recording to share the presentation with others—but we will stop recording during the Q&A section

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• Data helps us learn. We appreciate your responses in polls throughout the training and the survey

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• Take care of yourself - do what you need to do to care for yourself during the webinar

ARIZONA LAW

State & Local

Learning Goals

What we hope to learn

Learning Goals

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Skills & Knowledge

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• Participants better the under the distinctions, in Arizona’ among:
• Employees
• Volunteers
• Independent Contractors and Vendors

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• Knowledge of minimum benefits laws as they apply to full-time, part-time, and temporary workers.

Learning Goals

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Beliefs & Attitudes

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• Increase confidence of staff to operate our organizations in compliance with state and federal employment law.
• Increase confidence of staff to operate our organizations in compliance with our core values.

Real Talk…

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• HR Law is Connected to Our Progressive Values: Our movement does not always take care of our people - especially our organizers - remember HR is deeply related to our values - ensure policies in line with your values - we need to be the good guys!

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• Culture Matters: HR policies speaks volume about our org culture - so does the way we respond to staff organings for better policies or unionization - think of HR as deeply tied to your org culture

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• Liability Matters: Take HR Law Seriously - exposure financial and reputational

Who is the in the room…

WHO SUPPORT YOUR MISSION: POLL QUESTION #1

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What type of people support your mission?

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(Check all that apply)

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• Full-time employees
• Part-time employees
• Temporary employees
• Independent Contractors
• Volunteers

Training…

Legal Frameworks & Terms Defined

What Legal Frameworks Apply

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• Federal Law
• Fair Labor Standards Act (FLSA) - wages & overtime
• National Labor Relations act (NLRA) - collective action
• ADA, ADEA, Title VII - anti-discrimination

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• State Law
• Fair Wages and Health Families Act - wages & EPST
• State equivalents for anti-discrimination

What legal frameworks apply

Note: Often both frameworks apply, the more restrictive requirements control.

WHO IS SUPPORTING YOUR MISSION?

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• Full-time, Permanent Employee
• Other Employee
• Independent Contractor
• Volunteer

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Who is an employee

Definition

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Who is an employee?

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“Employee” means any person who is or was employed by an employer but does not include any person who is employed by a parent or a sibling, or who is employed performing babysitting services in the employer's home on a casual basis.

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Ariz. Rev. Stat. Ann. § 23-362

Definition

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Who is an employee?

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“Employ” includes to suffer or permit to work; whether a person is an independent contractor or an employee shall be determined according to the standards of the federal fair labor standards act, but the burden of proof shall be upon the party for whom the work is performed to show independent contractor status by clear and convincing evidence.

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Ariz. Rev. Stat. Ann. § 23-362

Definition

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Who is an employee?

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• Part-time employees?
• Seasonal employees?
• Temporary employees?
• Independent contractors?
• Volunteers?

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Who is an independent contractor?

Definition

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Who are your independent contractors (Federal test)

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• The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA.
• Total activity or situation controls

Definition

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Who are your independent contractors?

Factor Test FLSA:

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• The extent to which the services rendered are an integral part of the principal's business.
• The permanency of the relationship.
• The amount of the alleged contractor's investment in facilities and equipment.
• The nature and degree of control by the principal.
• The alleged contractor's opportunities for profit and loss.

Definition

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Who are your independent contractors?

Factor Test FLSA cont…

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• The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
• The degree of independent business organization and operation.

Who is a volunteer?

Definition

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Who are your volunteers? - Federal Labor Srd Act FLSA

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• freely volunteer for charitable and public purposes (nonprofit included)
• usually not commercial activities (i.e. running a gift shop)
• without contemplation or receipt of compensation.
• usually part-time basis
• do not displace regular employed workers

Definition

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Who are your volunteers? - Federal Labor Srd Act FLSA

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What to watch for:

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• Stipends or compensation of any kind
• “Internships”
• Commercial Activity (but don’t worry too much . . .)

TIP: More Information

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• DOL Fact Sheets (Federal)
• https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship
• https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs14a.pdf
• ICA Labor Department (AZ)
• https://www.azica.gov/divisions/labor-department
• Talk to an Employment Law Attorney (i.e. Jim’s firm)
• make sure they practice EMPLOYMENT LAW

Benefits

What does Arizona require that you provide

to your employees?

HOW DO YOU SUPPORT YOUR PEOPLE POLL QUESTION #2

What kind of benefits do you offer people?

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*Click all that apply

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• Cash compensation
• Paid personal time off
• Paid Sick Leave
• Gas Cards
• Sweet campaign t-shirts and hats

Minimum Wage AZ

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2022 Minimum Wage: $12.50 per hour - state law

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Minimum wage must be paid for all hours worked, regardless of the frequency of payment and regardless of whether the wage is paid on an hourly, salaried, commissioned, piece rate, or any other basis.

Minimum Wage AZ

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2022 Minimum Wage: $12.50 per hour - state law

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Arizona’s minimum wage laws make no distinction between full-time, part-time, or temporary

employees.

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It makes no distinction made between adults and minors.

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Earned Paid Sick Time

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Sick Time - State Law - employee 15 or more employees:

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• Employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked
• 40 hour required - employer can set higher limit.

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Tip: Sick leave with Covid is a place to keep your values

in mind

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Earned Paid Sick Time

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Sick Time - State Law - employee 15 or FEWER employees

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• Employees are entitled to accrue a minimum of one hour of earned paid sick time for every 30 hours worked.

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• 24 hour required - employer can set higher limit.

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Earned Paid Sick Time

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Sick Time - State Law - The Fair Wages and Healthy Families Act

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• Sick leave applies to:
• Part time employees
• Temporary employes
• but NOT to independent contractors

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Tip: Watch out - if the court determines you organizers are not IE but employees, then you would owe them sick leave

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Employee Protection Status

What laws protect employees from

discrimination or retaliation?

E’EE Protection

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FLSA Overtime - Federal

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Covered nonexempt employees must receive overtime pay for hours worked over 40 per work week (any fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay.

E’EE Protection

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Family and Medical Leave Act (FMLA) - Federal

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Requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent.

E’EE Protection

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Discrimination Protections - Federal

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For those who employer >15 employees:

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

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The ADA prohibits discrimination on the basis of disability in all employment practices.

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E’EE Protection

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For those who employ >20 employees:

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The ADEA (federal law) prohibits discrimination on the basis of age.

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E’EE Protection

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Discrimination Complaints - Protected Activity - Federal

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Complaining about discrimination or harassment, whether the complaint is “formal” or “informal,” it is a protected activity.

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Group effort (2 or more) to address terms and conditions of employment or “union talk” is a protected activity. This is known as “protected concerted activity.”

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E’EE Protection

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Discrimination Complaints - Protected Activity (cont) - Federal

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NO Retaliation is to be taken against employees who engage in complaining about discrimination on categories covered by law.

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Their right to engage in the above activities is protected by law.

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E’EE Protection

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Retaliation Protections - State AZ

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Taking adverse action against a person within ninety days of a person’s engaging in activities protected by the EPST law shall raise a presumption that such action was retaliation, which may be rebutted by clear and convincing evidence that such action was taken for other permissible reasons.

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Ariz. Rev. Stat. Ann. § 23-364(B)

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Concerted Activity

E’EE Protection

Concerted Activity

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Employees have the right to act with co-workers to address work-related issues in many ways. Examples include:

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• talking with one or more co-workers about your wages and benefits or other working conditions,
• circulating a petition asking for better hours,
• participating in a concerted refusal to work in unsafe conditions,

E’EE Protection

Concerted Activity cont.

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Employees have the right to act with co-workers to address work-related issues in many ways. Examples include:

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• openly talking about your pay and benefits, and
• joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.

E’EE Protection

Concerted Activity

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Violations of Section 7 rights:

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• The employer cannot discharge, discipline, or threaten employees for, or coercively question employees about, their "protected concerted" activity. This is known as an unfair labor practice (ULP).

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• Alleged violations of this right are handled through the NLRB administrative procedures. Federal

E’EE Protection

Other ULP Examples

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• “Interrogating” employees about their union or concerted activities
• Engaging in surveillance (spying) on employees protected activities
• Promising employees better terms and conditions of employment if they don’t go union
• Issuing company policies, that interfere with employees’ right to organize, e.g. conduct-related policies, non-disparagement rules
• Retaliating (e.g. discipline) against an employee who has engaged in protected activity

Final Tips…

FINAL TIPS

If you take anything home - take these TIPS . . .

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• GROUND YOUR HR WORK IN YOUR VALUES
• consider what is right for your people and your values - not just the legal minimum

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• GET EMPLOYMENT LAW COUNSEL & ASK CURIOUS QUESTIONS
• You need informed advice to be compliant - develop an org culture of asking curios questions - know where to go before you have a problem

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• CONSIDER INDEPENDENT CONTRACTORS (IE) FOR ORGANIZING CAREFULLY
• Both values and law can align here - often our organizers are employees

Scenarios…

EXAMPLE

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You are planning on launching a canvassing effort that runs through Election Day. You will bring on 25 people to knock doors and encourage voters to return their early ballot, up until the Tuesday before the election when you will encourage people to walk them to the polls on Tuesday of Election Day.

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EXAMPLE

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You decide to pay them by the door and give them a 1099 at the end of the year. Is that okay?

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EXAMPLE

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You decide to pay them by the door and give them a 1099 at the end of the year. Is this close enough to talking to a lawyer?

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• The extent to which the services rendered are an integral part of the principal's business.
• The permanency of the relationship.
• The amount of the alleged contractor's investment in facilities and equipment.
• The nature and degree of control by the principal.
• The alleged contractor's opportunities for profit and loss.

EXAMPLE

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You decide to bring them on as employees. You work with your payroll company to get them set up with deductions, payroll taxes, etc.

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• Do these employees earn paid sick time?

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• Will they be eligible to take that time?

EXAMPLE

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You decide to bring them on as employees. You work with your payroll company to get them set up with deductions, payroll taxes, etc.

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• Do these employees earn paid sick time? Yes. Immediately they earn an hour of EPST for every 30 they work.

• Will they be eligible to take that time? Probably not. They are not eligible to take EPST until they have worked for you for 90 days, if that is your policy.

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EXAMPLE

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You discover that one of your canvassers is encouraging fellow canvassers to knock door other than those assigned by your walk list. You suspect that he is an opposition plan and want to terminate him. Is he engaged in PCA?

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EXAMPLE

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You discover that one of your canvassers is encouraging fellow canvassers to knock door other than those assigned by your walk list. You suspect that he is an opposition plan and want to terminate him. Is he engaged in PCA?

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No. Even if his efforts are not to sabotage your efforts, this is an example of insubordination, not PCA. PCA needs to be about work conditions, such as work, hours, pay, benefits, etc.

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EXAMPLE

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You discover that one of your canvassers is 16 years old. You are uncomfortable having someone so young interacting with voters and decide to terminate. Is this a violation of the ADEA?

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EXAMPLE

You discover that one of your canvassers is 16 years old. You are uncomfortable having someone so young interacting with voters and decide to terminate. Is this a violation of the ADEA?

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No. The ADEA applies to workers over 40 years of age.

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Final Tips…

Closing

SURVEY

Please fill out the survey by hitting the link in the chat…

Link in chat

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