Non Profit Report - November 2014

Date: November 25, 2014

Terminating Employees: A Checklist for Minimizing Risk
By: Jennifer S. Jackman, Esq.

This article appeared in the Special Focus: Employment Law section of Association TRENDS, June 2014, and is reprinted with permission of the publisher.

To minimize risk, the decision to terminate an employee requires consideration of multiple factors before action is taken.

  1. Basis for termination.  Assuming that there is no contract governing the employment relationship and the employee is “at-will”, there should still be a basis for the termination.  Although “at-will” employees can be terminated for any reason, provided it is not an illegal reason (i.e. discrimination, retaliation, etc.), the employer will need to articulate a legitimate, non-discriminatory reason for the termination should the employee file a claim arising from the termination. 
  2. Documentation.  The basis for the termination must be documented.  For example, if the employee is being terminated for performance issues, the personnel file should reflect poor performance.  Often times, supervisors either do not provide performance evaluations or provide inaccurate performance evaluations.  This is a problem because when it comes time to terminate, the record may not support the basis for the termination.  It is critical to document poor performance or any basis for termination as it occurs. 
  3. Consistency.   Consistency in enforcement of policies is imperative.  Before terminating an employee based upon a violation of policy, determine whether other employees have violated the same or similar policies.  If so, were they terminated for the violation? If not, is there justification for the harsher treatment of the employee about to be terminated?  Justification may include factors such as multiple violations, poor performance, insubordination, refusal to accept responsibility – but again, these factors need to be documented in the event the action is later challenged.
  4. Review the Employee Handbook.  Prior to terminating an employee, review the employee handbook to ensure that the termination is consistent with policy. Does the association have a progressive discipline policy? Is the basis for the termination covered by the handbook as a terminable offense?  Does the handbook require the payment of any severance?  
  5. Protected Factor?  In terms of employment actions, both positive and negative, all employees must be treated equally without regard to any protected factor.  Thus, no employment decision should ever be made based upon a person’s race, disability, age, etc.  That said, if the employee who is being terminated belongs to a protected class, determine whether that employee has raised any claims of unfair treatment or could argue that the termination is in retaliation for engaging in protected activity.
  6. Separation Agreement.   If, after consideration of the above factors, the decision is made to terminate, determine whether a separation agreement is appropriate.  Typically, such agreement requires payment of severance in exchange for a release of all claims.  Separation agreements need to be carefully prepared in order to be enforceable.  For example, if an employee is over the age of 40, provisions are required as part of the agreement that are not required for employees under 40.

The Americans with Disabilities Act: A Brief Overview of What Associations Should Know
By: Tiffany M. Releford, Esq.

This article appeared in the Special Focus: Employment Law section of Association TRENDS, June 2014, and is reprinted with permission of the publisher.

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate against a qualified individual with a disability in any term or condition of employment, as well as retaliate against an individual for asserting his/her rights under the ADA.  It is important to note the ADA does not prohibit an employer from hiring the most qualified candidate for a job; it only prohibits an employer from discriminating against a qualified applicant or candidate because of his/her disability.  Below is a brief summary of what else associations should know about the ADA. 

Who is covered?  The ADA covers any employer with 15 or more employees. 

What disabilities are covered under the ADA?  Disabilities covered are physical or mental impairments that substantially limit a major life activity.  A person can have a record of a disability or be regarded as having a disability.  This means the impairment must significantly limit a major life activity such as walking, hearing, speaking, or caring for oneself.   Disabilities not covered include illnesses of limited duration, broken bones expected to heal, or current use of illegal drugs. 

What obligation does an employer have under the ADA?  Once a request for a reasonable accommodation is made by an employee or applicant, the employer must engage in an interactive process with the employee or applicant to determine if the requested accommodation will allow a qualified applicant or employee to perform the essential functions of the job.  However, unless the disability is obvious, an employer’s obligation to provide a reasonable accommodation applies only to known physical or mental limitations.   An accommodation must be provided unless doing so would cause an undue hardship on the employer.  Please note an undue hardship requires the employer to show, among other things, the accommodation would be unduly costly, extensive, disruptive, or would fundamentally alter the nature or operation of the employer’s business.  In making this analysis, the size of the employer, financial resources, nature of the business and costs to the employer should be considered. 

How does an employer determine the reasonable accommodation?  Providing a reasonable accommodation does not mean an employer must provide the specific accommodation requested by the employee.  The employer and employee should engage in interactive dialogue to determine what reasonable accommodation is suitable.  While some accommodations may be alternative work schedules, job restructuring, modifying equipment or devices; the appropriate accommodation should be determined on a case-by-case basis.  Although one or more employees may have the same disability, the reasonable accommodation may not be the same for each employee, as there is no one size fits all solution when it comes to disability accommodations. 

What information can an employer ask about the individual’s disability?  An employer should refrain from asking about the nature or severity of a disability.  If the employer is unable to determine the reasonable accommodation because the disability is not obvious, the employer should request the employee or applicant have a doctor provide documentation about the disability and possible reasonable accommodations.