Keeping Track: The importance of HR documentation policies

Despite their altruistic purposes, nonprofits generally face the same human resources (HR) problems common to for-profit organizations.  For example, sometimes they need to terminate an employee’s position – perhaps for work performance issues or lack of funding.  Many laws, however, protect employees against termination for the wrong reasons, such as age, gender, or racial discrimination.  A claim of employee discrimination can be extremely costly, time-consuming, and otherwise detrimental to any employer.  Consequently, to avoid such problems, it is crucial that nonprofit employers not only establish good employment documentation protocols but also have effective document retention policies.  Failure to observe proper HR document protocols may expose the organization to legal risk when it becomes necessary to terminate an employee. 

Documentation Can Save the Day

Consider the following case, decided this month:  A nonprofit fired an employee forattendance issues, inappropriate behavior, unsatisfactory performance, and insubordination.  The nonprofit asserted that the employee failed to timely complete required paperwork, used his personal computer to process client information in violation of the nonprofit’s policy, arrived at work late, left work early, and logged more absences than the nonprofit’s policy authorized.  The employee sued on the basis of age discrimination.[1]

Under the Age Discrimination in Employment Act of 1967 (ADEA), it is unlawful for an employer to discharge an employee who is at least 40 years old because of the employee's age.[2]  In this particular case, the plaintiff claimed that the nonprofit’s executives were biased against older workers.  He testified he had overheard a conversation between supervisors, during which someone said: “When they get old, they should get out of here.  I don't know why they would stay.  I don't know why they won't retire and just go.  I don't know why they would want to stay.”  The plaintiff contended this conversation occurred at least three times.  These statements, he claimed, were direct evidence of age discrimination, and that the employer’sstated reasons for discharging him were mere pretext for its discriminatory actions. The plaintiff claimed there was no documented evidence of misconduct or poor performance in the months preceding his discharge.

“Ministerial Exception” Upheld in Campus Ministry Context

Are campus ministries exempt from anti-discrimination employment laws, with respect to their religious leaders?  The federal Sixth Circuit Court of Appeals has emphatically said, “Yes.”  Its decision expands application of the “ministerial exception” doctrine that protects faith-based organizations from certain discrimination claims.  The decision also raises important questions concerning judicial application of the doctrine.

1.         Background to the “ministerial exception” – religious exemptions from certain discrimination laws.