Expulsion and Guilt

Several times over the last decade, I have been called by a board member or a managing agent and asked, “What do we do about a staff member accused of molesting a child?” Or the teenage daughter of a resident claims that a porter made unwelcome advances. Or the wife of a unit-owner accuses an elevator operator of molesting her. Or, after a theft, the shareholders believe it to be a doorman who was lurking around the crime scene. None of these situations is novel, all become highly contentious, and all are not easily resolved.

When these things happen, most people forget that someone is innocent until proven guilty. Indeed, even if there is no basis for the accusation, the parents of the child or the residents of the “robbed” apartment will not accept that the accused may not be guilty. It is a sensitive situation and requires a great deal of patience.

The first thing to remember is that the board and the management company are not the police. They should not interfere with the official investigation of a crime. If you believe that a crime has been committed, the first thing to do is to contact the police. The longer you delay, the greater the likelihood that memories will change or that evidence will disappear or become spoiled.

The second thing to remember is that most members of the building staff are members of Local 32BJ of the Service Employees International Union. Therefore, both your corporation or condominium and its board members are bound by the agreement between the union and the Realty Advisory Board (RAB) on Labor Relations, the collective bargaining agent for many – if not most – multifamily buildings in New York.

So if you believe that an employee has acted improperly, the second call (after the police, if it is for a crime) should be to the RAB to determine the correct course of action. Among the steps you should not take is forcing the employee to undergo a lie detector test. The reason? Rule Number 37 of the RAB agreement with the 32BJ states: “The employer shall not require, request, or suggest that an employee take a polygraph or any other form of lie detector test.”

The other aspect of the union-employer relationship is that, regardless of how angry the shareholder or unit-owner may be, the board cannot simply fire the employee. The board can attempt to dismiss, but the discharged person can and probably will file a grievance with the union. This will result in a hearing months later. The hearing officer may determine that the employer had no basis to terminate, which means that the employee must be rehired and given back pay. A preferred procedure to avoid this would be to suspend the employee (with pay) after speaking to the RAB. Of course, if the employee is arrested and the police charge him or her with a crime, termination becomes easier and less expensive.

All co-ops and condos are subject to the local, state, and federal labor laws and human rights laws. That means that if a shareholder, unit-owner, or board member – or spouse of any of them – starts yelling at the employee or mistreating him or her in any way, your co-op or condo could be subject to charges that you are creating a hostile work environment. Furthermore, if the employee is a member of a protected class, your co-op or condo also could face a discrimination charge by various human rights agencies.

One additional problem is that every accused staffer has friends living in the building or shareholders or unit-owners who feel fatherly toward the employee or, on the flip side, harbor a grudge against the superintendent, resident manager, or the board. Any of these people could feel compelled to testify. That could prevent you from discharging the employee.

This leads to the one way to remove an undesirable staffer permanently: pay him off. Paying an employee who you believe has committed a crime will probably enrage the shareholders or unit-owners at the next annual meeting and make the board look foolish. But sometimes there is no other way. The problem exists regardless of whether the employee is innocent or guilty but unconvicted. There will be such a hue and cry among the residents that there will be no peace until the employee is removed.

The employee must sign a detailed “separation agreement” before the payment is made. This is important because you do not want to make the payment and then have the employee begin a lawsuit against the board. In addition, if the soon-to-be-former employee is the superintendent or resident manager, he must vacate his free apartment before being paid.

Finally, remember that even former employees who may have done something wrong are protected by libel and slander laws. Therefore, do not distribute a detailed letter explaining what the staff member did wrong. At most, you might want to post a simple statement to the residents saying that the employee is gone.