Avoiding Staff Surprises

by Charles R. Gregg and Catherine Hansen-Stamp

This year, the American Camp Association (ACA) has seen a significant increase in requests for information from camp directors about seasonal employment issues. More specifically, staff members and camp managers have asked for clarifications about seasonal employees, employment laws, and resident camps because of misunderstandings about working in a 24/7 environment. The queries to ACA have pertained to health, safety, and convenience; working hours and conditions (e.g., "Must I work in such heat?"; "Must I work more than eight hours in a day?"); days off; overtime issues; and certain staff rights or liberties (e.g., "Why can't I smoke?"; Where are the special menus?").

Some of these matters are, in fact, governed by state and federal laws; but most are simply issues which can, and should, be part of the information exchanged in the employment process. Note that our article here does not address a camp's relationship with independent contractors it may hire to assist in running the camp or conducting activities for campers. Different and important rules and doctrines apply to a camp's relationship with its independent contractors that are not within the scope of this article.

The subjects that have been raised with ACA are not so much disturbing as they are surprising. And the surprise is that apparently they have not been adequately addressed in an employment interview; in the camp's stated staff policies, posted rules and regulations for staff; and/or in a formal employment agreement. In fact, some of these matters are addressed in the ACA Accreditation Standards and accompanying CD Rom.

In the fall of 2004, we wrote an article for The CampLine on then newly adopted federal labor regulations.1 We addressed, among other things, the issues of seasonal employment, minimum wages, work hours, and overtime pay. In the spring of 2005, we wrote on staffing issues generally, including duties of camp staff to campers and to the camp and duties of camp management to staff. We included an overview of written agreements of employment.2

In this article, reacting to this year's questions, we will review and discuss more thoroughly the components of an employment agreement and discuss how camp management can best reduce the surprises—including those described in the queries to ACA—that might arise in the employment relationship. We will discuss the importance of a camp statement of staff policies, as well, and sensitivity to use of written policies (outlined in an employee handbook or otherwise) and employment agreements in the face of the 'employment at will' doctrine. As appropriate, we will touch on laws affecting wage and hour, as well as health and safety. These laws generally include the federal Fair Labor Standards (FLSA) and Occupational Safety and Health Acts (OSHA)3 and companion regulations, as well as applicable state laws.

The Camp/Staff Relationship

The best employment relationship is the one with the fewest surprises. A disappointed or otherwise unhappy staff member can and will affect overall staff morale and greatly complicate the camp's fulfillment of its responsibilities to its campers. Staff is on the front line in presenting, and putting into action, the philosophy and goals of the camp. If staff fails, the camp fails.

The camp employee wants and deserves to know what is expected of him or her, when and for how long, in what working condition, and for what pay. The camp wants and deserves to know the qualifications of the employee, her or his expectations and special needs, if any, and any other matter which may be pertinent to best serving the needs of the campers. Alignment of expectations is vital. The fewer the surprises, the better.

Persons interested in a camp job should be able to rely on ACA accreditation of a camp to give them confidence regarding the priorities of the camp, its commitment to the well-being of the children, compliance with local and federal laws, and fair and reasonable treatment of staff. But unexpected and unaddressed issues may arise, as evidenced by the questions to ACA and private experiences of management and employees.

Camp Rules and Policies

A basic element of your information exchange with staff should be careful development of a statement of staff policies, which might be set out in an employee handbook or similar document. This statement of policies can address issues such as time off; sick leave; workers' compensation; differing policies (and benefits) regarding full-time, part-time, or seasonal staff; the camp's commitments to certain rights and liberties of staff; staff behavior expectations; disciplinary policies, if any; and other important matters. If you are in a state that recognizes the 'employment at will' doctrine, your legal counsel will be careful to assist you in developing appropriate language for the handbook or other statement to clarify that it is not intended as a contract, but simply as a statement of the company's policies. For example, disciplinary 'steps' can be described as 'guidelines' to be used at the discretion of the camp, to avoid those being viewed as implied and binding contract terms. The nonbinding nature of the company's policies can provide flexibility to the camp in the way it runs its operation. See the ACA Accreditation Process Guide (2007) HR 8 and accompanying CD Rom, HR 8 A & B, for a discussion (and sample) of personnel policies and related issues.

The Employment Agreement

Although some camps may choose to embody all policies within an employee handbook or other statement of staff policies, it is valuable to have a mechanism for recording a shared understanding of the respective camp/staff responsibilities and expectations in the employment relationship—an employment agreement. This understanding should be clear, arrived at without coercion, and comply with local laws and customs. It should be reviewed, of course, by legal counsel familiar with the camp's culture and goals and with applicable laws. One important determination made with your legal counsel will be to consider whether to include certain matters within the camp's general statement of staff policies, within an employment agreement, or both.

[Note that some legal counsel and consultants believe that utilizing a written contract with employees might also threaten the 'employment at will' doctrine in that it implies an employment other than at will. However, as we note below, the at will nature of the relationship can be preserved within the context of a carefully crafted employment agreement. Certainly, work closely with your legal counsel to address these issues in your own jurisdiction and considering applicable state law.] 4

The elements of an employment agreement should include, among others, the following, which we identified briefly in our staffing article in 2005:

  1. The duration of the employment, if any (exercise caution to address any at will employment considerations). Consider an acknowledgment of the employee's status as a seasonal employee only, if that is the case.
  2. Clearly stated expectations regarding hours to be worked, time off and circumstances, and entitlement (or not) to overtime pay, benefits, or other perquisites such as laundry access, special meals, transportation, after-hours access to the kitchen, waterfront, and other gear.
  3. Compensation, including when and how payment will be made, and an acknowledgment that the camp will withhold required taxes, etc., if this is the case.
  4. The general duties and responsibilities of staff—these will vary, of course, and may apply to a counselor with only limited responsibilities for specific activities (waterfront, archery, etc.), or to staff with responsibilities for only one activity area (wranglers, for example).5 Descriptions in this regard must anticipate issues that not even the employee may recognize: responsibilities for cabins and equipment, dining room supervisory duties, responsibilities for campers (and the camp's reputation) while the staff member is off duty or in town.
  5. An acknowledgment of camp policies, rules, and regulations, including those regarding drugs, alcohol, smoking, profanity, exclusive relationships, use of (and responsibility for) personal computers, cell phones, or other personal property, the freedom to leave the camp or have visitors, communications with campers after the camp term ends, etc. These matters may be handled more efficiently in the camp's statement of staff policies and merely referred to in the employment agreement.
  6. A declaration of the right to terminate employment at any time and for any reason, or for no reason at all, if your state is an 'employment at will' state. You may wish to provide for a procedure for resolving disputes or issues that might otherwise lead to termination; or, simply provide that the camp will exercise its sole discretion in such matters. As mentioned earlier, this discipline process may instead be included in the camp's statement of policies. Note that even in 'at will' states, termination cannot violate antidiscrimination or other laws, and in some cases, broad notions of public policy.
  7. A provision, or separate document, that describes the staff member's acknowledgment and assumption of risks and release and indemnity agreement for incidents occurring during off duty time or actions outside the scope of employment.

You may wish to have separate agreements for different staff positions. An agreement for counselors, for example, will differ— certainly with respect to duties and hours—from an agreement for a wrangler, cook, or maintenance person. But the focus is the same: the well being of the campers, including the reasonable management of the risks of their growth and development while in the camp's care.

Minors, while they cannot be legally bound to an agreement, might be called on to sign an acknowledgment of what is expected of them, including camp rules and regulations and circumstances of terminating the employment. Many of ACA's calls this year came from the parents of minor-aged staff, so it is critical that their parents also understand the agreement or acknowledgment signed by the minor.

As previously mentioned, employment agreements and any camp statement of staff policies must be approved by local legal counsel, who will advise the camp regarding, among other things, the obligations owed to staff under state and federal law.

Sampling of Issues

The following are examples of questions raised by some camps across the country. Generally, FLSA and OSHA laws and regulations and state laws and regulations address these staff issues. We found that both the Department of Labor (DOL; www.dol.gov) and the Occupational Safety and Health Administration (OSHA; www. osha.gov) Web sites provided extremely helpful information on a variety of these issues. Camps and their legal counsel should also consult specific state labor or health and safety laws to understand the law in your jurisdiction and to determine if those laws are more stringent than federal requirements on various topics. In many cases, the DOL and OSHA Web sites provide references to applicable state law.

  1. "I thought I would have a whole day off during my work week" and, "I have the right to take a cigarette break." The FSLA does not limit hours worked for adult employees or mandate certain days or times off. In addition, federal law does not require break or rest periods (but requires that breaks taken under twenty minutes be paid).6 However, many state laws mandate rest or break periods, and dictate whether those breaks must be paid or not.7 ACA standards recognize time off, but it is not a mandatory standard.8 No law we know of mandates required 'cigarette' breaks. (In fact, with the recent laws abolishing smoking in many public areas, employees are increasingly losing the option to smoke on or at the job site). Note that minors (particularly those under sixteen) are quite restricted in the days and hours they can work. An excellent resource for camps hiring youth workers is located at www.youthrules.dol.gov.9

  2. "I am not getting paid the right hourly wage or the amount of overtime pay I am entitled to!" The FLSA sets minimum wage rates for many types of work, and state laws may have additional or more stringent requirements. These requirements should be followed closely. Please see our Fall 2004 article on the FLSA regulations regarding overtime pay and exemptions from those requirements. As we discuss there, overtime pay is not required if the employee is exempt—e.g., has certain job duties and is paid a certain salary. In addition, camps have often relied upon the FSLA exemption from overtime pay requirements for 'seasonal amusement or recreation establishments'.10 This exemption allows organizations, like camps, that operate no more than seven months a year, or whose income during two consecutive six-month periods in a calendar year does not exceed certain levels, to avoid FSLA overtime pay requirements. Note that companion state labor laws may be more restrictive, and legal counsel should examine these exemptions closely for issues.

     

  3. "It is too hot to work" and "I don't like the food served in the cafeteria—there aren't enough choices for vegetarians." In general, camps can set the work responsibilities for their staff. However, OSHA laws do regulate working conditions, as well as health and safety—including sanitation and hygiene—in the workplace. For example, employees have a right to a safe and healthy workplace and can refuse to work if they believe they are in 'imminent danger.'11 They have a right to appropriate protective equipment and to receive training in the type of work in which they are engaged.12 Note that OSHA provides helpful 'fact sheets' regarding staff that may be working in extremely hot or cold temperatures (see, www.osha.gov/oshdoc/toc_fact.html, 95-16 and 98.55). Workers don't have the right to demand types of food within a certain menu, unless, for example, they have received specific accommodations under the Americans with Disabilities Act. However, they do have the right to sanitary eating and drinking conditions and appropriate nutrition and hydration (which may be further regulated by state and federal public health laws).13 Employee and employer 'rights and responsibilities' are identified generally under 'employer/worker' at www.osha.gov.

     

  4. "My teen daughter is undertaking job duties that aren't appropriate for her age—I am worried about her safety!" A "teen" might be an adult (over eighteen pursuant to DOL laws and generally in most states) or a minor. Under FLSA laws, a youth over eighteen can work in any occupation he or she is qualified. A sixteen or seventeen-year-old can work in any nonhazardous occupation. Hazardous occupations on a camp premises could include these restricted activities, so review the list carefully if you hire young people in this age group. Prohibited work includes operating a variety of power driven machinery and driving a motor vehicle. Those younger than sixteen are even more restricted in their job duties, and this is worth examining if you routinely hire younger staff members. For example, a fourteen to fifteen-year-old may not load or unload goods off of trucks, perform baking and most cooking activities, conduct maintenance or repair, and operate some motorized equipment.14 Note that many camps have a 'counselor in training' (CILT [or CIT]) program for their younger and emerging camp leaders. Some camps simply have these CILTS apply and pay as campers, and then proceed to use them as 'assistants' for some activities during the course of the camp term. This may be an appropriate process, but certainly, check with your legal counsel to assure that you are complying with applicable laws in how you conduct the program. Again, even if your teen staff have undertaken work that is appropriate and legal, you, the camp, have duties under OSHA laws to provide appropriate training to your staff. Both the DOL and OSHA have developed extremely helpful 'sub' Web sites regarding youth workers—including compilation of applicable state laws, youth and employer rights and responsibilities under FSLA, OSHA laws, and child labor laws, and other helpful matters. Review the DOL's 'Youth Rules!'15 site and the OSHA 'Teen Workers'16 site.

Conclusion

Know the law—and get help, including legal counsel, where you need it. Violation of labor or health and safety laws can result in penalties and back wages owed—and, importantly, increase worker discontent, and potentially increase the likelihood of injuries or incidents. Know your federal and applicable state laws ahead of time and be thoughtful about granting excess overtime pay, meals of a certain quality or variety, or other benefits. (Granting benefits like these without an understanding of the law can set precedents in your workplace which will raise the expectations of all staff, and cause discontent if you ultimately eliminate those benefits because you find they are not required.) On the other hand, certainly provide a clear description of camp and staff rights and responsibilities— whether those be contained in an employee handbook, employment agreement, or some combination of both. In addition, provide a means to obtain staff feedback on concerns—whether those involve safety issues, quality of food, or otherwise. A process to address concerns is a mark of a quality operation—one which complies with legal requirements, strives for mutual understandings regarding expectations and requirements, and addresses staff concerns fairly and consistently.

This article contains general information only and is not intended to provide specific legal advice. Camps should consult with a licensed attorney, experienced in recreation and adventure law, regarding application of state and federal laws and issues specific to their business or operation.

1 "Newly Adopted Labor Regulations", ACA The Campline, Fall 2004.
2 "Important Staff Issues for Running a Quality Camp Program," ACA The Campline, Spring 2005.
3
The FSLA is located at 29 U.S.C. 201, et seq. and OSHA is located at 29 U.S.C. 650, et seq.
4
See discussion on this point in ACA's Accreditation Process Guide CD Rom, section 8A, 'Additional Items to Consider in Personnel Policies.' The ACA Code of Ethics (ACA 2007 Accreditation Process Guide, Appendix A) #13, however, recognizes the value of an employment agreement.
5 Consider the importance of describing the 'essential functions' of the job position. Of course, this is important to comply with the Americans with Disabilities Act Title I requirements (for hiring), but is also critical to establish ongoing ability to perform, and any need to accommodate in the workplace. (See reference at ACA 2007 Accreditation Process Guide HR-6 and accompanying CD Rom section 6A).
6 FLSA fact sheet #22, Hours Worked under the FLSA located at www.dol.gov/esa/regs/compliance/whd/whdfs22.htm; see also 29 C.F.R. 785.18.
7 www.youthrules.dol.gov/states.htm.
8
ACA 2007 Accreditation Process Guide, HR 21.
9 See also www.dol.gov/elaws/esa/flsa/docs/hours.asp.
10
29 USC 213(a)(3); see: DOL fact sheet #18 discussing the "Seasonal Amusement" exemption, located at www.dol.gov/esa/ regs/compliance/whd/whdfs18.htm.
11 29 U.S.C. 662; www.osha.gov/as/opa/worker/danger.html.
12
29 U.S.C. 654 – 655.
13
See, e.g., OSHA regulations at 29 CFR 1926.51., available through the OSHA Web site at www.osha.gov/SLTC/foodbornedisease/ standards.html.
14
See www.dol.gov/elaws/esa/flsa/docs/haznonag.asp; see also helpful fact sheets #43, Youth Employment Provisions of the FLSA For Non-Agricultural Employment; #60 (employment of lifeguards) and #37 (employment to Amusement Parks and Recreation Establishments); see also ACA 2007 Accreditation Process Guide accompanying CD Rom section 3A.
15
www.youthrules.dol.gov/index.htm.
16 www.osha.gov/SLTC/teenworkers/index.html.

Originally published in the 2007 Fall issue of The CampLine.

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