Nonprofits Insurance Alliance

members and growing

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.

When #MeToo Comes to the Nonprofit Workplace

It’s hard to ignore the plethora of revelations of sexual harassment incidents involving well-known public figures being revealed in the news recently.

It’s also difficult to ignore the grassroots social movement that resulted – the #MeToo campaign, originally started by consultant, blogger and advocate Tarana Burke over 10 years ago, and recently popularized with a tweet by actress Alyssa Milano that garnered more than 35,000 direct responses on its first day. From there, the hashtag quickly spread across multiple social media platforms and grew immensely in participation, with individuals all over the world chiming in to share their stories of harassment and assault, or simply posting #MeToo. To say the trend is viral is an understatement – people are speaking up, and they’re doing so publicly.

What you may not know is that the number of harassment complaints nonprofits have been receiving has increased as well. These complaints run the gamut from anonymous emails reporting decades old alleged transgressions to the reporting of current serious ongoing harassment of current employees by their supervisors. Sexual harassment is a serious issue and it is incumbent upon every nonprofit to do what it can to minimize the risk of these types of incidents from occurring.

At the Nonprofit Insurance Alliance Group, we have many free tools to assist our members in addressing these risks. The following resources are available to our nonprofit members when faced either with a current complaint of sexual harassment in the workplace, or to educate your workforce in mitigating the potential risk of sexual harassment becoming an issue.

  • Free recorded webinar on Preventing Sexual Harassment and Abuse Conduct in the Workplace, which can be accessed
  • Free recorded webinar on Conducting Internal Investigations, which can be accessed
  • Members with a current Directors and Officers policy (which includes Employment Practices Liability) can take advantage of free unlimited Employment Consultations. Labor & Employment Risk Managers (LERMS) can assist members in understanding best practices for establishing a harassment free workplace, including sample policies and recommended training; the processing of a complaint of harassment, including internal or external investigation and assessing risk; and possible steps to remedy the situation. Information on how to request a consultation can be found here.
  • Free Sexual Harassment Prevention Training for Supervisors, available for nonprofit members in Connecticut and California where such training is legally mandated. Additional information can be found here.
  • Training brochures for nonprofit staff working with youth, entitled “Supervision of Children and Teens Never Includes Sex,” which is available

In addition to these resources, you should confirm with your nonprofit’s insurance broker that you have sufficient Employment Practices Liability (EPLI) insurance coverage under a Directors & Officers (D&O) insurance policy, and/or Improper Sexual Conduct (ISC) coverage, if you are exposed to risk in this area.

Making these tools available should help create a healthy and respective environment at your nonprofit, minimize the likelihood of a #MeToo incident from occurring, and assist you in responding if such an incident does occur.

Learn More