Tuesday, February 16, 2016

Should you advertise your nonprofit as employment at will?

Should you advertise that you are employment at will?

While I was attending a school board meeting, a superintendent differentiated his staff from the unionized school staff as employment-at-will.  Employment at will means that you can terminate an employee at any time for any reason.  He was actually wrong about his status and that of his staff.  He has a contract.  If his employer, the school board, decides to dismiss him at any time, then it has violated the contract.  I’ve seen this time and time again in local government.  Local governments are surprised when they have to pay a town manager when they’ve violated the contract they sign. Second, public sector employees have constitutional due process right to their job.  In effect that means that the public employer has to provide some sort of grievance procedure, an appeal procedure of some sort. 

It’s true that the remainder of employers are employers-at-will with the caveat of those with employees who have a union contract or individual contract.  Most courts have upheld this common law principle with very few exceptions, even whistleblowers lack protection according to NY courts.  This is good news for the nonprofit (or private sector employer) that wants to be free of interventions.  Do you have a statement to this fact on, say, your application, in an employee handbook, or letter of a job offering?  Do you make new employees sign a statement that the offer letter or employee handbook does not constitute a contract?  If so, then you are highlighting your right of employment at will.  Now take a look at your policies? Do they conflict with this idea?  Do you actually want to be known as an employer-at-will? 

Do you have
  • An individual or union contract with any employees
  • Grievance procedure
  • EEO policy (you can’t fire a person based upon Sex, National Origin, Race, Religion, Color, Disability, Age, and in some states Sexual Orientation)
  • An introductory period or probationary period
  • An evaluation process, a promotion process based upon favorable evaluations
  • A disciplinary process
  • An exit interview process

All these policies are the types of policies your lawyer on your board would recommend you have, but they send a decidedly different message from prominently stating your right to be an employment-at-will. 

As you review your policies, consider what you are trying to do.  Is employment-at-will the policy you most want to highlight.  If so, then you might want to eliminate some of the policies highlighted above.  If not, then you might highlight your mission, your good reputation as an employer, your family friendly policies, great benefits, or satisfied employees.

No matter what you decide, your employees who are let go without cause or documentation are eligible for unemployment.  Firing for no apparent reason will most certainly cause you to pay unemployment no matter what state you are in and no matter whether you say you are employment-at-will or not.