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 for attendance 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’s stated 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.
The court disagreed. In holding for the nonprofit defendant, the court noted extensive documentation maintained by the nonprofit and produced as part of the litigation. The concurrently-developed information demonstrated conclusively that the nonprofit employer’s decision to end the plaintiff’s employment was not based on age, but rather on non-discriminatory performance-related deficiencies. In particular, the defendant produced memoranda and written warnings that documented performance problems, notes from a meeting with the employee in which management expressed their expectations of him, the plaintiff’s supervisor’s daily reports of plaintiff's activities, and an email from his supervisor to management documenting a mistake plaintiff made that the supervisor was required to correct. Based on this documentation, the court concluded that the plaintiff failed to meet the legal standard for proving unlawful discrimination.
Nonprofit Best Practices: Good HR Document Retention Policies
What can nonprofit employers learn?
First, remember to document all employment supervision and disciplinary measures, including the steps that could (or actually do) lead to employment termination. Perform annual or other periodic job performance evaluations, and memorialize them in writing. Have written job descriptions, to serve as benchmarks for job performance expectation. When employee misconduct occurs, prepare a “memo to file” or other writing that includes a summary of what an employee has (or has not) done warranting a warning or other adverse employment action taken. In other words, keep track!
Second, and correspondingly, develop a document retention policy that includes such employment considerations and otherwise complies with federal and state law. In the event of litigation, such protocols may protect the organization’s interests, and they are otherwise in accordance with best practices standards. (Such a policy is also expected, as part of a nonprofit’s IRS Form 990 reporting.) Good HR retention protocols include instructions on the nonprofit’s creation, handling, and retention of the following documents:
- Federal forms such as W-2, W-4, and I-9;
- Compensation, job history, and time-keeping records;
- Paid and unpaid leave records;
- Performance evaluations;
- Disciplinary action notes and records;
- Benefits records;
- Disputed issues; and
- Workers’ compensation records.
The above list is not exhaustive, and a nonprofit should consult with qualified legal counsel to ensure that the retention policy for each of the above documents meets the nonprofit’s obligations under state and federal law.
Third, a nonprofit’s board of directors should work with the organization’s executives and HR personnel to confirm that the Board’s document retention protocols are properly observed in practice. Specific individuals should be assigned with the responsibility of taking custody of HR documents, according to their job descriptions. The organization that takes steps to sufficiently plan for HR document retention, and to educate its responsible personnel, will protect itself when difficult employment-related circumstances arise.
