Options for Church Staff Reductions: Involuntary

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Transcript Options for Church Staff Reductions: Involuntary

Options for Church Staff Reductions: Involuntary Reductions in Force and Voluntary Employee Exit Programs

Victoria M. Garcia Partner Bracewell & Giuliani, LLP San Antonio, TX

Preliminary Actions

Freezes

Salary, hiring, promotion, post layoff hiring

Pay Reductions

Ensure applicable state wage payment laws are reviewed (advance notice may be required)

Reduced salaries must meet minimum $455 threshold to retain exempt status

Other limiting factors: employment agreements

Attrition Reductions

Job reduction through attrition:

Savings by not filling vacancies

Vacancies can easily be filled when conditions improve

Takes place over lengthy time period (but reduces immediate cost savings)

Reduced Work Schedules/Furloughs

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Placing employees on “no-work, no pay” status due to budgetary constraints, lack of work or other non-disciplinary reasons May be voluntary or mandatory Temporary – not impact on full time classification or benefits eligibility Permanent – adjust classification and benefits

Reduced Work Schedules/Furloughs

To realize cost savings, furloughs for salaried exempt employee must be for full FLSA work week:

Must ensure that employee performs no work during that week

No emails, phone calls, work at home, answering employee questions, etc.

Reduced Work Schedules/Furloughs

FLSA limitations on reducing exempt employee salaries

Employer can require exempt employee to use vacation during Furlough

If no vacation, salary must still be paid for partial week furlough

May not reduce salary for furloughs of less than a full “FLSA work week”

Involuntary Reductions in Force

Three Types of RIFs

Position elimination: position is completely eliminated

Position consolidation: 2 or more positions are eliminated and their duties are combined into fewer positions

Downsizing: the position continues, but with fewer employees performing the job duties

RIF Recommendation 1: Preparation

Use objective selection criteria for RIF selection between employees

Most objective: length/seniority of service

Facilities are usually more interested in retaining best performers, regardless of seniority

Determine if WARN or state mini-WARN applies to RIF

RIF Recommendation 2: Establish Criteria

Document criteria used to choose between employees for downsizing RIF

Rank employees separately for each facility, classification and work shift

Appoint a diverse committee to oversee RIF, determine selection criteria application of RIF criteria, consistency and fairness

After selections completed, conduct statistical disparate impact analysis

RIF Recommendation 3: Ensure Legal Compliance

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WARN: Facility Closing or Mass Layoff?

Is notice required?

30-day and 90-day analysis

If yes, provide timely and complete notice

60 days prior to facility closing or mass layoff

Affected employee, state dislocated worker unit, and chief elected official

State Law Mini-WARN Analysis

Older Worker Benefit Protection Act

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EEOC rules dictate employer notice to age protected employees under OWBPA Employee waiver must be:

In writing

Not Misleading

Plain language

Specific reference to ADEA Provide decisional unit notice information No “cure” for defective OWPBA notice

Special Requirements for Group RIFs

A “Group” RIF is two or more employees, at least one of whom is age 40 or older

Must inform employee in writing:

Group covered and the eligibility factors

Applicable time limits for execution of waiver agreement

Job titles and ages of individuals eligible or selected and all individuals in same job not eligible or not selected

Must give 45 days to consider waiver agreement and 7 days to revoke signature for a “Group” RIF

RIF Recommendation 4: Implementing the Reduction

Articulate “why” positions are being eliminated

Communicating with employees who are subject to the RIF

Enhancing Post-RIF Morale

Redefining the organization

Voluntary Exit Incentive Program

Voluntary Exit Incentive Program

Permitted by federal OWBPA

Few state law issues

Employer determines selection criteria to create “pool” of eligible employees

Factors: department, job classification, full time or part time, age, length of service

Examples of Exit Program Groups

Full-time Pastors who are at least 58 years old and have 10 years or more denominational service

All employees at schools with 20 or more years of denominational service

All employees who are at least 65 years old with 3 or more years of denominational service

Steps for Voluntary Exit Incentive Program

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Facility may select specific department or unit, job title and age/seniority group

Use of age as eligibility factor does not violate law for voluntary exit program Provide notice of Program to eligible employees Give a minimum of 30 days to elect participation or reject

Steps for Voluntary Exit Incentive Program

No rescission or withdrawal from Program after employee elects to participate

Provide Separation Agreement with 45 days to consider and sign, 7 days to revoke

If insufficient participation, next step may be involuntary RIF

Benefit Options

Supplemental remuneration

Early work release

Vacation payout

Continuation of medical coverage for 60 days and premium payments

Benefit Options

Extension of eligibility for NAD retirement allowance (up to 3 years) – NAD Working Policy Z

Criteria:

Enter into retirement

Directly from employment with the organization conducting the Program

Not applicable if person becomes employed with another denominational organization before entering into retirement

Benefit Options

Extension of retiree moving allowance (up to 3 years)

Criteria:

Enter into retirement

Directly from employment with the organization conducting the Program

Has not received retiree moving allowance from another denominational employer

Not applicable if person becomes employed with another denominational organization before entering into retirement

Benefits of Voluntary Exit Program Over Involuntary RIF

Employees elect whether to cease employment

Less damaging to employee morale

Retain lower-paid and potentially higher motivated employees

Fewer legal challenges

Disadvantages of Voluntary Exit Program

To be successful, incentives must be offered beyond NAD policy

Program may be more costly than RIF in short term

Loss of experienced employees

Takes more time to implement than RIF

30 days for election to participate

45 days to sign separation agreement, 7 days to revoke

Voluntary Exit Program Considerations

Must be employee’s free and voluntary choice to accept or reject Program

Do not reserve the “right to reject” volunteering employees

Minimum age requirements are typically permissible (even if > age 40)

Maximum age requirements may violate the ADEA

Voluntary Exit Program Considerations

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Ensure category of employees selected for program is not so small to create impression that specific individuals are being targeted for removal Not an “early retirement” program

Designate knowledgeable individual as “Program Coordinator” to answer employee questions

Establish timeline for actions – usually 90-100 days Ensure the Program is well-documented

Voluntary Exit Program Documents

Introductory Letter to Eligible Employees

Notice of Program and Terms

Personalized statement of Program and benefits

Employee Election Form

Waiver and Release Agreement

Voluntary Exit Program Documents

Frequently Asked Questions (FAQ’s)

“Reminder” letters to eligible employees

Timeline of actions

Involve attorney from the beginning of Program development

Elements of the Introductory Letter to Eligible Employees

States that the organization needs to reduce employees, but that the choice is voluntary

Explains eligibility criteria

Use to deliver Program Notice, Personalized Statement, Election Form, Sample Waiver and Release, and FAQ Responses

Identify with whom the employee may discuss the program

States the Election Deadline

Elements of the Program Notice

Explains eligibility criteria

Explains election process and deadlines

Explains exit incentive benefits

Explains separation agreement and timing to sign agreement

Reiterates that the program is voluntary

Contains at-will employment statement

Provides contact information for questions

Elements of Personalized Statement

Specific to each individual recipient

Explains how the employee meets the eligibility criteria

Lists the benefits that the individual will receive if he or she chooses to participate

Explains the program election process, deadlines and requirements

Elements of the Release and Waiver Agreement

Important dates

Last date of employment

Date agreement provided to employee

Consideration period

Revocation period

Elements of the Release and Waiver Agreement

Benefits provided to the employee (examples)

Salary through end of employment

Supplemental compensation

Paid days off

Reimbursement of medical plan premiums

Legal claims the employee is releasing

Elements of the Release and Waiver Agreement

End of employment issues

Confidential information

Return of facility property

OWBPA decisional information required by OWBPA

List of job titles and ages of individuals eligible for the Program

List of job titles and ages of individuals with the same job classification who are not eligible for the Program

Questions and Answers