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Handling Terminations of Employment

No termination should ever come as a surprise. This is a common mantra by labor, employment and human resource specialists alike, because it summarizes the topic of employment terminations so well.

Preparing to terminate an employee is no simple matter because the way an employer handles the employment relationship from the start all the way through this final event, can either set the stage for lengthy and costly litigation, or more preferably, end a relationship in an uneventful farewell.

Typically a termination follows conduct that is either so egregious, the employee is foolish not to expect a termination (e.g., theft of company property, assault on a coworker, engaging in sexual harassment), or results from a series of disciplinary measures where the employee was put on notice that continued poor performance or behavioral issues would result in further discipline or termination.

Certain misconduct may result in more immediate and severe consequences. For instance, in the event of workplace violence, sexual harassment, theft/dishonesty, or being under the influence of drugs or alcohol, it may be more appropriate to issue an immediate termination rather than use progressive discipline. Contrast this to intentional reduction in output, insubordination, or consistently late/incomplete work. These types of issues may not warrant immediate termination, but should still be documented as soon as a pattern of poor performance is noticed. Importantly, inaccurately stellar performance evaluations will do more harm than good when it comes time to defend a decision to terminate for “poor performance.”

While it may be true that the doctrine of employment-at-will is the fundamental employment relationship in the United States, meaning that without notice, an employee may quit at any time and for any reason, or an employer may end employment at any time and for any reason not prohibited by law, caution must still be taken when terminating an employee, and employers would be prudent to carefully evaluate their decision for any termination.

Managers and supervisors are often hard-pressed for time, but taking the time to clearly document misconduct or concerns will help demonstrate objectively, the reasons for discipline and/or termination.  Also consider whether policies and procedures have been explained to staff and consistently applied. Did the employer review similar incidents and apply consequences as they would for any other employee who engaged in similar misconduct? Was this employee properly trained and made aware of expectations? Were all employees, without regard to their protected class, treated the same?  If applicable, were they given the proper warnings prior to termination?

Some best practices in preparing for and conducting a termination include:

  • Ensuring credible documentation is in the employee file regarding negative performance/behavior
  • Discussing termination with direct supervisor(s) and HR
  • Being honest with the employee about reasons for termination but keeping the explanation to a minimum
  • Expecting the unexpected. Employees will react in all different ways, be prepared ahead of time for all possible scenarios.
  • Supervising the removal of personal effects
  • Scheduling a termination to minimize disruption in the workplace
  • Communicating the termination privately, but considering a witness, especially in terminations you think will be contentious on any level
  • Allowing the employee the opportunity to respond to any investigative findings or decisions for termination
  • Arranging for timely termination of access (e.g., email, computer logins, key access) to prevent sabotage
  • Communicating other housekeeping items to employees such as the continuation of benefits, when they can collect their belongings, and how you will logistically exit the room once the termination meeting ends
  • Acting swiftly and without hesitation once a decision has been made

Lastly, even those terminations that are well-documented and warranted may not be a welcomed action by employees, and the employer may want to consider severance pay in exchange for a release of claims. If an employee is litigious, a member of a protected class, has recently requested or taken a medical leave of absence (whether for physical or mental illness), filed a complaint regarding the workplace, or has disclosed a disability or need for some accommodation, employers should consider risk of a lawsuit for discrimination or retaliation. Inconsistencies applying rules to any employee will lend to a risky situation for the employer.

The EEOC prohibits consideration of race, religion, sex, national origin, age, disability or genetic information when making decisions to terminate employment.  Other laws also require employers to provide certain notices to employees following termination (e.g., COBRA) and may require that final pay and all reimbursements are made to an employee at the time of termination.

No matter the reason for a termination, employers should remember that the loss of a job could be detrimental to the employee, so it is always best to practice courtesy, compassion, respect and professionalism during the process.

Employees with Disabilities and the Americans with Disabilities Act

Imagine meeting with your employees for their routine annual evaluations and having to tell your once star-performer that their performance is slipping and they are no longer meeting the requirements of the job. You may have a Performance Improvement Plan (PIP) in mind, when the employee discloses that their work product has declined because they are having difficulty doing their job as a result of a medical condition, and you had no idea. Now what?

While some disabilities are obvious, others are not and this is why it is important to always be prepared when an employee discloses a medical condition, physical or mental, that is causing them difficulties at work.

Under the Americans with Disabilities Act (ADA) and as expanded under the Americans with Disabilities Amendments Act (ADAAA), employers with 15 or more employees must ensure equal access to employment for applicants and employees. In other words, the ADA/ADAAA prohibits discrimination based on disability and requires that employers remove barriers to allow qualified individuals equal opportunity to secure and maintain employment without regard to their disability. This federal law requires employers to provide reasonable accommodations to employees that would allow them to perform the essential functions of their job, unless doing so would impose undue hardship on the business or pose a direct threat to the health or safety of the employee or another.

In order to determine whether there are reasonable accommodations available, employers should engage in an interactive process, a collaborative discussion with the employee to determine how the employee can continue to perform essential functions of their position. The following is a list of suggested steps employers should take to ensure a routine and consistent process:

  1. Recognize a request and ask the employee, “How can we help?”
  2. Gather information to determine limitations
  3. Identify essential functions vs. marginal functions by reviewing a current job description
  4. Explore accommodations
  5. Choose accommodations, if any, and notify the employee
  6. Monitor the effectiveness of the accommodation
  7. Maintain status quo or determine new accommodation

The interactive process should be individualized, meaning two employees with the same disability may have different limitations and result in different accommodations. Therefore, it’s important to gather information from a medical provider and have confidential discussions with the employee to learn more about possible accommodations.

While employers may get creative and come up with new ideas that work for both the nonprofit and the employee, other routine examples of accommodations include: allowing a telecommuting arrangement; authorizing additional breaks throughout the day for an employee to check insulin levels; providing leave to an employee for cancer treatment; and permitting an employee to leave work early to attend drug and alcohol rehabilitation sessions.

When working with disabled employees, employers should keep the following in mind:

  • The Interactive Process may be conducted face-to-face, through a phone conversation, or even by written instrument (e.g., email).
  • The employer may select accommodations and offer the employee alternatives and is not limited to the requested accommodation of the employee.
  • If the employee is unable to perform the essential functions of their job with or without reasonable accommodation, the employer may place the employee in a vacant position, so long as the employee is qualified and the employee can perform the essential functions of the vacant position.
  • Employers do not have to create light duty positions for employees with disabilities. The employee is expected to perform the essential functions of a job and the employer should evaluate accommodations to allow those functions to be performed.
  • Because the Interactive Process is an ongoing collaborative process, employers should monitor the effectiveness of an accommodation to determine if it should continue or if it is necessary to explore alternatives.

Returning to your star-performer who disclosed a medical condition during a performance discussion, a best practice would be to put the PIP on hold and refer the employee to your nonprofit’s HR Department/representative to commence the ADA interactive process. Ideally, managers will handle performance concerns and HR will handle the confidential accommodation interactive process.  Once the interactive process is completed, you should monitor both the effectiveness of the accommodation and the employee’s performance. It is acceptable to record the prior substandard performance in any evaluation, and to track performance during any accommodation period.

As always, nonprofits are encouraged to apply their policies and practices consistently.  By following the same general process, employers can lower their risk of a discrimination claim and maintain documentation to demonstrate compliance with federal law.  Employers also should be aware that some states have stricter requirements.  While the ADA covers employers with 15 or more employees, some states have disability accommodation and anti-discrimination statutes that apply to even smaller workforces.

For more information on the Americans with Disabilities Act and how it can affect smaller nonprofits, also check out this article from the nonprofit knowledge network MissionBox.com.

Changes to CA Marijuana Laws Leave Employers Unaffected

In the 2016 election, California voters passed Proposition 64, which decriminalized the recreational use of marijuana and made California the 8th state where such use is legal. This change came after decades of recreational use being outlawed, and more than 20 years since the decriminalization of medical use with the enactment of the California Compassionate Use Act of 1996. Proposition 64 also created a wide variety of changes in the institutional and cultural treatment of marijuana in the state, including regulation of cultivation, sale, taxing and use, which went into effect on January 1, 2018.

As was encountered with the decriminalization of medical marijuana 22 years ago, changes to the law have created some uncertainty as to how the law affects employer’s ability to control the use of marijuana by employees under Drug-Free Workplace policies. The resolution of any uncertainty begins with the simple reality that, despite the new direction California and several other states have taken, the sale and use of marijuana remains federally illegal. The continued illegality of marijuana under federal law created the necessity for the California Supreme Court to clarify the effect of the medical marijuana law on an employers’ ability to regulate its use and impact in the workplace.

In the 2008 case Ross v. RagingWire Telecommunications, Inc., the Court upheld the termination of an employee who tested positive for marijuana despite their having a valid prescription. The Court noted that the Act only removes criminal penalties for authorized medical use and nothing more. Marijuana use remained illegal under federal law and thus, the use of medical marijuana was not considered the same thing as the use of other “legal” prescriptions. In the 2012 case James v. City of Costa Mesa, the court ruled similarly, finding that because federal law does not authorize marijuana use, users may not seek protection under the Americans with Disabilities Act (ADA) either.

The newer law relating to recreational use does not deviate significantly from these rulings. Proposition 64 specifically states that it does not amend, repeal, affect, restrict, or preempt “the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”

What does that mean for California employers and employees? Nothing in Proposition 64 limits the ability of an employer to enforce its marijuana-related policies, including testing current and prospective employees, and/or discipline (including termination) under those policies.

In the midst of the well-publicized changes to California law early this year, another potentially significant event occurred without significant coverage and whose impact has yet to be fully realized or understood. In 2013, then U.S. Deputy Attorney General James Cole sent a memo to federal prosecutors, advising that their efforts should not be devoted to the use or sale of marijuana in states where it had been legalized. It further advised that prosecutors should leave any enforcement efforts to state and local authorities.

On January 4, 2018, three days after the commercial sale of marijuana became legal in California, Attorney General Jeff Sessions rescinded this policy and directed federal prosecutors to enforce federal law regarding marijuana, and to “follow well-established principles when pursuing prosecutions related to marijuana activities”.

While the effect of the new federal enforcement direction remains to be seen, one thing remains clear— the right of employers to maintain and enforce their policies concerning marijuana use remains intact.

4 Ways to Show Your Nonprofit Employees That You Care This Holiday Season

We’ve all heard the narrative of the overworked nonprofit employee, who prioritizes their organization’s cause to the point of personal burnout. It’s true that burnout is common in the nonprofit sector, and during the holiday season it’s even more likely, with travel, familial responsibilities, last-minute gift shopping, and tight budgets on the minds of many.  Add in other stressors like an increased workload as a result of co-workers taking time off and children who are out of school, and you’ve likely got one exhausted employee.

Unfortunately, high levels of stress often lead to decreased productivity, absenteeism, and workplace accidents. So how does your nonprofit keep its employees engaged when they’ve got so much on their minds, and you’ve got a budget to adhere to? Rather than continuing on with business as usual, try celebrating the holidays by celebrating your employees! Below are four cost-effective ways to boost morale and show your employees that you care this holiday season.

1. Plan a Holiday Party

A holiday celebration gives employees something fun to look forward to, and it doesn’t need to be expensive! A holiday party can be anything from an all-staff dinner at a local restaurant to something as simple as a shortened workday followed by a potluck. There are also many alternatives to the traditional office party, including an ugly sweater day or even a white elephant game.

2. Show Flexibility with Scheduling

While it may not always be possible, showing your employees some flexibility during the chaotic holiday season can have a major effect on their stress levels. If staffing permits, choose a day to allow employees to leave a little early, or show greater flexibility with regard to time-off requests. Your employees will appreciate the consideration when it comes to their busy schedules, and the extra time can contribute to a better work-life balance.

3. Give Out Personalized Cards

Personalized thank you cards written out to each employee are a great way to show that you care without spending a lot. Just letting your employees know that you appreciate them each individually, enough to write and give them a card, speaks volumes.

4. Organize a Staff Volunteer Effort

Volunteering during the holidays is a great way to feel good and to make a difference in the community, bringing the focus of the holidays back to those that are less fortunate. Try organizing a volunteer effort separate from your nonprofit’s cause, such as a food or gift donation drive. You could also organize a half-day away from the office to spread holiday cheer at a local homeless shelter or hospital. Getting out of the office and doing something good as a group not only boosts morale, but it’s also great for team building!

While we like to think of this time of year as happy and joyous, it can often be stressful too. Showing understanding and taking steps to demonstrate that employees are both seen and appreciated goes a long way.

Does My Organization Really Need an Employee Handbook?

Despite the fact that there are no state or federal laws that require an employer to have and provide handbooks to their employees, it’s almost universally agreed that having and using a well-drafted, comprehensive, and easy to understand handbook serves a number of legal, practical, and risk preventative purposes, and nonprofits are no exception.

Ideally, handbooks not only provide clear and specific information on a large number of important topics to employees, about both their employment and their employer, but they also provide specific notices to the employee about their rights. These often include rights to any job-protected leave, communication of zero-tolerance policies, information on employee benefits, and much more. If applicable, the handbook is also used to establish and clarify the at-will nature of the employment relationship, performance and disciplinary expectations, and policies on vacation and holiday benefits.

However, even well-crafted handbooks can be victims of the passage of time, as well as changes that take place in the law and in the workplace. Regulatory and legislative action can change what an employer is required to do with regard to their employees — often without time to adequately prepare for that change. In their efforts to remain compliant with these changes, employers should be prepared to revise and update any applicable policies in their handbook to reflect new legal realities.

Similarly, if an employer has always had fewer than 50 employees and later increases their workforce to 51 employees, they would then become subject to a number of new laws. The best example would be the fact this employer, who once was not subject to the Family Medical Leave Act (FMLA) leave laws, would now be required to provide their employees FMLA.  In this case, the handbook that never needed an FMLA policy would have to be revised to ensure employees were aware of their newly acquired rights.

Thus, by their very nature, employee handbooks should never be considered “carved in stone.”  They should be reviewed on a regular basis, annually at a minimum. This review should be performed by experienced employment law counsel to ensure that any and all recent legal and workplace developments are taken into consideration in the review and revision process.

 

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