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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.

Changes to Independent Contractor Classification in California

While businesses have traditionally subcontracted certain tasks to independent contractors, the on-demand or “gig” economy has seen this practice skyrocket with the business models used by Uber, Lyft, GrubHub, TaskRabbit and many other tech companies. To a limited extent, nonprofits also depend on independent contractors to perform functions where regular staff do not have the expertise, or for temporary or limited projects.

There is little risk when subcontracting is done through a business, such as hiring a temporary worker through a staffing agency where the worker is the employee of that agency. But when a nonprofit is hiring an individual worker to perform tasks that falls within the scope of the nonprofit’s mission, the classification of independent contractor just became much more risky due to the recent California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles.

In its lengthy decision, the Supreme Court analyzed the basic public policy objective of the California Wage Orders, which were adopted to establish minimum wage, overtime, and meal and rest breaks for non-exempt employees. The court noted that these laws ensure responsible employers are not hurt by competitors realizing the potentially substantial economic benefits of substandard employment practices (such as non-compliance with minimum wage, overtime, meal and rest breaks, insurance benefits, etc.), that could result in a “race to the bottom.”

After analyzing the definition of “employee” under the Wage Orders, as well as the existing multi-pronged independent contractor test and legal tests used by other jurisdictions, the Court determined that a simplified “ABC” test should be used to evaluate whether a worker is classified as an independent contractor for purposes of California Wage Orders.

So how does this simplified test work? The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors ONLY IF the hiring business demonstrates that the worker in question satisfies all three of the following conditions:

  • A. – That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  • B. – That the worker performs work that is outside the usual course of the hiring entity’s business; and
  • C. – That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

So if the worker meets conditions A and C, but not B, because they are not working outside the usual course of the hiring employer’s business, then the worker must be classified as an employee.

The most difficult prongs of the test to meet for most workers will be prongs B and C, so nonprofits analyzing worker classification should likely start with their mission statement and purpose. If an employee is working to further that mission, then under condition B, that worker is likely an employee and no further analysis is necessary.

Going on to condition C, by way of example, while a plumber or an IT technician are not likely to fall within the mission of a social services nonprofit, whether they are in an independently established trade, occupation or business will need further examination. A licensed plumber in a separate business clearly is, but an IT technician may or may not be. Condition A, who directs and controls the worker in the performance of their work, will always require a case-by-case evaluation.

Finally, remember that this Supreme Court case involved the definition of “employee” for purposes of the California Wage Orders. Different employment laws have different definitions of “employee,” so it is possible that a worker may properly be classified as an employee with reference to one law but not another. Nevertheless, once a worker is classified as an employee for Wage Order purposes, they likely should be similarly classified for all other compliance purposes.

Nonprofits that have workers classified as independent contractors now or over the past three years (the applicable statute of limitations on wage claims) should re-evaluate that classification under this narrowed definition to assess whether there is potential liability for wages or penalties for the work performed.

Emergency Preparedness – Active Shooter

While most of us will never experience an active shooter emergency, the number of incidents is on the rise. Given this fact, and the seriousness of these events when they happen, it’s important to be attentive to both education and prevention.

According to the U.S. Department of Homeland Security, an active shooter is an individual actively engaged in killing or attempting to kill people in a confined and populated area. In most cases, active shooters use firearm(s), and there is no pattern or method to their selection of victims.

There is not one, single profile of an active shooter. Personality traits do not follow any set pattern, vary widely, and are usually too general to be useful. According to the Department of Homeland Security, many active shooters follow a violence pattern that begins with negative situations, moves to intense negative feelings and the idea that violence is the right way, followed by planning the violent incident. Some workplace shooters are trying to right a perceived wrong, such as a conflict on the job or termination, and may have a specific target. Many others have no specific target, but may have an ideological goal. Perpetrators are relatives in 40% of female workplace homicides, while only 2% of perpetrators against males were relatives.

Active shooter incidents are often unpredictable and evolve quickly. Recognizing potential threats and reacting as quickly as possible cannot be emphasized enough. Many survivors of active shooter incidents have said that they heard noises, but weren’t sure they were gunshots. Every second counts. An active shooter situation will put you under extreme stress, so much so that your ability to think straight and make good decisions may be impaired. It is important that you have trained, practiced, and mentally rehearsed what you will do in this type of emergency, so you can react without hesitation.

The City of Houston Mayor’s Office of Public Safety, with funding from the U.S. Department of Homeland Security, produced the Run, Hide, Fight video. This is an excellent free resource for training your employees and volunteers and has quickly gained traction as a national standard for active shooter protocol.

While the majority of all incidents from 2000-2013 occurred in an environment related to commerce, you should be sure that active shooter training is part of your workplace violence program. An effective response plan should include procedures to respond to mass casualty threats, such as active shooters, by developing evacuation or sheltering plans that are appropriate and feasible for the facility, a procedure for warning individuals of the situation, and a procedure for contacting the appropriate law enforcement agency.

In your training, encourage individuals to consider the environment in which they work and identify two possible escape routes. If possible, identify a secure location in your facilities where individuals could take cover and hide. Hiding in a secure location has been extremely effective in active shooter situations. The shooter knows there is limited time before law enforcement arrives and will typically move on from locked doors rather than use that time to attempt to force entry.

In an active shooter situation, do not assume that someone else has called 9-1-1. Call if you can do so without slowing down your exit or revealing your hiding place. When calling, be prepared with your exact location (address, floor you are on, section of building, etc.). If you have the information, provide the number of shooters, including a description of the individual(s) and any weapons, their current location, and if there are any victims.

It is important to note that even when law enforcement arrives, the danger is not over. The responsibility of the first officers on the scene is to stop the shooter before they do anything else. Officers will be under stress and prepared to use deadly force. If an officer sees you, they will look at your hands for a threat, so put your hands up, spread your fingers, show them your palms and stay very still.

The U.S. Department of Homeland Security (DHS) aims to enhance preparedness through a “whole community” approach by providing products, tools, and resources to help you prepare for and respond to an active shooter incident. Visit their website to access the many resources available to help your nonprofit with this important area of emergency preparedness.

Preventing Sexual Harassment in the Workplace (Hint: It Starts at the Top)

As recently stated by the Equal Employment Opportunity Commission (EEOC): “harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves.”

The truth of this statement cannot be overstated.  While it has long been believed that training and an effective complaint process is the way to stop the problem, the EEOC has pointed out that more is likely needed.

“With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And, most important of all, what can be done to prevent it? After 30 years – is there something we’ve been missing?”

It could be said that the missing element is leadership. Too often, yet for good reason, dealing with sexual harassment in the workplace is something that management, executive directors, and chief executive officers often defer to others to handle and manage.

Perhaps the time has come to see the wisdom and efficacy of having the leaders of the mission of the enterprise become more personally involved in the necessary task of eliminating and preventing sexual harassment in the workplace.

Granted, the reality is that many of these individuals are very busy, taxed and overworked. However, a demonstration by senior management and supervisors that they acknowledge, understand, and will take an active role in prevention can only have a positive effect upon the consciousness in the workplace that “zero tolerance” means just that.

In general, there are many ways this leadership can be demonstrated. Here are just a few suggestions:

1. Management Should Take an Active Role in Training

While senior managers are in attendance in training sessions, as some states require, they are often left off the list of presenters. Indeed, the presence of these agency leaders provides a strong and important signal to staff that this subject is important and that management is committed to the elimination of sexual harassment in the workplace. It’s also important to consider an active role in the presentation by the manager, as their level of engagement is likely to have a significant impact on the staff’s engagement.

2. Train Supervisors to Monitor the Workplace for Policy Breaches

Supervisors should be trained to proactively monitor the workplace for any breaches of the organization’s sexual harassment policies. Supervisors and management are uniquely positioned to monitor the interactions of staff with one another and to make inquiries if there is a hint that any form of harassment is occurring, or if one demonstrates the effects of being victimized.

3. Demonstrate Proactive and Effective Support of Enforcement

Given the need to effectively deal with an occurrence of sexual harassment in the workplace, it’s important to remember that the best way to fix a problem is to remove the offender. This often presents management with a conflict of loyalties if the offender is a long-time employee, colleague, or friend. Moreover, it can be the case that the offender is a very productive or important contributor to the overall operation of the agency, including members of senior management. These loyalties or practical concerns must be set aside in making decisions and imposing consequences for violation of sexual harassment policies. No one is too important, indispensable, or essential to an employer’s business to be disciplined for violations of a zero tolerance policy, and managers should demonstrate the courage to handle these situations properly.

4. Monitor and Track Complaints and Investigations

While the complaint and investigation processes are properly delegated to staff with the experience and expertise to handle these critical functions, it’s also vitally important that management know how these actions are handled. Keeping track of the status of complaints and investigations allows management to know the character of their workplace and the agency’s progress in ensuring the workplace is free from harassment.

5. Maintain an Open-Door Policy

Nothing will encourage employees to come forward and report their experiences more than a senior manager who welcomes, supports, and empathizes with them. That support not only enhances morale within the workplace affected by harassment, but also demonstrates an appreciation of the problem and commitment to prevent it from occurring again.

The law has placed no greater importance on any single aspect of employment than the prevention and elimination of sexual harassment. While training and effective complaint and investigation policies have provided methods to achieve this goal, dedicated understanding, support, and encouragement by the leaders of an organization are essential to ensure that mission will succeed.

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.

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