Legal Lessons: Staff

Legal Lessons

Choosing an attorney for your building requires a series of steps. First is taking the task at hand and figuring out what legal skills are required to solve your problem. Then comes the hunt, often through word of mouth, for the lawyer possessing those skills. In the past, many boards have used Habitat’s annual attorney survey to identify potential firms and lawyers. This year, to make that resource more valuable, we have increased the scope of what we asked participating lawyers to provide. Besides the basics (fees, size, areas served, etc.), we asked them to write about typical issues or cases they have encountered and then to offer advice and comment. In doing this, we hoped to capture each lawyer’s unique thinking and tone. And we took some additional steps, too, visiting every attorney’s office and taking photos of him or her so you could see who was telling the legal tale. Digesting the advice and legal cautions will take some time, but for board directors who monitor the legal lines, it’s a good investment.

Termination Troubles

Levine & Montana

ISSUE What might a board face when it receives a demand to fire a building staff employee?

BACKSTORY A cooperative with more than 125 units recently received a strong suggestion from the managing agent that the employment of the superintendent be immediately terminated. It was the understanding of the agent that the super was involved in a verbal or physical altercation at the property, that he appeared to have been drinking alcoholic beverages, and that the police were called. The agent also felt that the superintendent had a sufficient history to warrant the firing. The managing agent asked the cooperative’s officers to contact our firm, as counsel to the corporation, in order to review the matter.

The police did file a report. It indicated, among other things, that the superintendent appeared intoxicated. The incident may have occurred when the superintendent was off-duty.

One of the persons at the scene of the alleged incident had called management to report that she was involved in it to some degree, and called for the firing of the superintendent. She also claimed that she would apply for an order of protection against the superintendent.

When we heard from an officer of the cooperative, we indicated that the super was a member of a labor union, and that his employment was the subject of a collective bargaining agreement. The employee was thus entitled to the procedures outlined in that agreement. One of those procedures required the cooperative to give notice in writing setting forth the reasons why the employee’s services are not desirable (and why it sought eviction if the employee was given an apartment as part of his employment, which was the case here).

We asked for details of the other incidents that constituted the superintendent’s possible history of alleged bad conduct. It was reported that the superintendent was driving a utility vehicle owned by the corporation without a license, and that he had misrepresented that he possessed a driver’s license. There apparently were several other charges that were made by some residents to the board or management.

The board reviewed the matter. Instead of immediately firing him, it suspended the super for several days. The union was contacted and the procedures for discharge and eviction were held in abeyance while evidence was gathered. The board decided it was more prudent to confirm whether the allegations could be verified before proceeding with any employment termination.

COMMENT The termination of an employee must be done with care. An employment contract, if it exists, needs to be reviewed to determine the grounds available to terminate the employment, or whether it may be done without cause. If the employee is a union member, there is usually a collective bargaining agreement that needs to be followed. For certain union contracts, a cooperative or condominium that fires an employee could be responsible to provide severance pay and/or moving expenses. For union employees, if the firing is contested, the dispute may need to be resolved through arbitration. So the board should be sure that its grounds for termination can stand the scrutiny of a third party, such as an arbitrator or a judge. If the conduct of an employee gives rise to a reasonable belief that that the welfare and safety of the residents are in peril, the board may decide that immediate termination is appropriate, and deal with any legal fallout later. Residents who make complaints against an employee should be willing to sign a statement or give testimony. Deal with anonymous complaints suspiciously.

—Lewis Montana