Parting Ways With Your Super

If your building is lucky, letting go of a super is something your board won’t ever have to face. But when it does, it’s no easy task. Terminating a super who isn’t performing the required duties, whether due to competence, attitude or age, is a potential minefield if the proper procedures aren’t followed. It’s also a sensitive issue that could cause a stir among shareholders or unit-owners, especially if the super has been at the building a long time and lives there. “Firing supers can get emotional because they’re not only employees but your neighbors, and you know them and their families,” says A.J. Rexhepi, the chief executive officer at Century Management Services. “Because of that connection, very often boards hold off and give underperforming supers a longer rope, even when it’s not in the best interests of the building.” Don’t make that mistake. If you’re considering laying off your super, here’s what you need to know — and the steps to take that will make a difficult transition go as smoothly as possible.

TERMINATING UNION EMPLOYEES

Employees who are members of the building workers’ union, Local 32BJ — who constitute the bulk of staffers, supers included, at New York City’s co-ops and condos — can only be terminated for violating the terms of the union contract with the board. That involves performance-related issues, such as not responding to problems or being available in emergencies, failing to clean the building or follow instructions from management, and tardiness or rudeness to residents.

If a super isn’t doing the job adequately, boards need to keep records of the shortcomings, including verbal and written warnings every time there’s a problem. “You want to try to work with that person and offer the opportunity to improve behavior, but if that doesn’t work you have to formally move on,” Rexhepi says. Boards that decide to terminate have five days after notifying the super to provide a written statement of the reasons for dismissal. The outgoing super has 30 days from then to vacate the apartment.

Even with a detailed paper trail, boards can run into roadblocks. The 30-day period is placed on hold if the super objects to the termination and asks for mediation with the Joint Industry Grievance Committee, part of the alliance between 32BJ and the Realty Advisory Board on Labor Relations. If the union feels a firing is unwarranted, the case is sent to an independent arbitrator, which is why it’s essential for boards to present a compelling case for termination. Without it, boards face a nightmare scenario if the arbitrator orders reinstatement — a decision that is final — and the super returns to the building. And if the super’s work doesn’t improve, the board, which must pay for the arbitration, will have to start the process of documenting the problems all over again.

When an arbitrator determines a firing is justified, the super is entitled to severance pay. While there is no set amount, severance typically ranges from a minimum of four weeks’ salary to a maximum 11 weeks’ after eight years of service. Boards can negotiate a settlement, which may also include granting the super a certain amount of time before the apartment has to be vacated.

Even then, they should brace themselves for trouble. A super might refuse to move out, forcing the board to start an eviction proceeding in landlord-tenant court. “That’s why it’s a smart move to figure out what the proper number is and provide the exiting super with the proper compensation,” Rexhepi says. “Otherwise, it’s going to cost you time and money in legal fees.” In the meantime, there’s the added expense of paying a new super, and no place for that person to live.

Josh Koppel, the president of HSC Management, is grappling with that very problem at a 52-unit co-op in the Bronx where the union super was terminated a year ago. “We kept all the proper records and he didn’t contest the firing, but he’s still in his apartment living for free and has a free parking spot as well,” Koppel says.

With the case slowly winding its way through court, “I don’t expect him to be out for another year,” Koppel adds. “We’ve had to hire an outside cleaning service, and the board is also throwing in a hand, but it’s a pretty brutal situation.”

NON-UNION SUPERS

Terminating non-union supers is not as difficult as those who belong to 32BJ, since they are at-will employees and can be fired without warning at any time and for any reason, according to New York state law. Even so, boards should proceed carefully. “You want to cover yourself by doing progressive discipline, just as you would with union supers, by formally noting unsatisfactory performance and giving them a chance to fix it,” Rexhepi says.

And what happens after a board has exhausted every option? “You have to make sure to bring the issue up at a properly noticed board meeting,” says Andrew Wagner, a partner at the law firm Herrick Feinstein. “The decision to terminate should be pursuant to a formal resolution, put to a vote and approved by the board. That’s not only good business practice — it will also insulate the board and individual members from potential liability if the super sues for wrongful termination.”

As for the outgoing super’s last day at work, compassion counts, and boards would do well to set a reasonable end date. “I’d say 30 days is fine, but 60 days is even more fair, especially when supers have to relocate their entire family,” says Julie Schechter, a partner at the law firm Armstrong Teasdale. “However, boards need to be aware that they might not get the best service during that time. It’s a trade-off.”

Though not required for non-union supers, offering severance is another gesture of goodwill that can go a long way to ensure the relationship ends as cleanly as possible. Securing the proper legal papers is also essential. “In exchange for a lump-sum payment, be sure to get a signed release in which the super agrees not to sue the co-op or the board for any reason, which will save you big headaches in the long run,” Wagner says. “Of course, that’s no guarantee the person will abide by the agreement, but the board will be in a strong position if it does find itself in court.”

In fact, the best preemptive move for boards with non-union supers is to have their own employment contract. If they don’t, they should have their attorney draft one. “The biggest misstep we see in buildings with non-union employees is not having a contract at the outset, or not having clear terms in an existing contract,” Schechter says. “It should specify that if there is a termination, the super no longer has the right to live in the building. You want to link that, as well as any other benefits like a parking space, to the person’s employment. And you should include the right to charge them for occupancy if they don’t vacate in time.”

INFORMING OWNERS

No one likes to see someone they like get fired, including shareholders and unit-owners, so it’s important to be mindful of their feelings. “People get attached to their supers, and terminating their job and their home simultaneously can make them upset or even angry,” says Armin Radoncic, a partner at Venture NY Property Management. To head off any problems, some of the co-ops he manages have held informational meetings specifically about their decision. “You want to let people know so it’s no surprise to anyone,” he says. “That kind of puts the fire out before it starts.”

When communicating their decision in person or in writing, boards need to make three points, according to Mary Federico, an organizational behavior consultant, longtime board member at her New York City condo, and Habitat columunist. “First, that you realize that this may be upsetting to folks who’ve had a relationship with the super,” she says. “Second, that you can’t disclose details for legal reasons. And third, that the board made this very difficult decision after careful consideration, with advice from counsel and with the best interests of the building in mind.”