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

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Freezes

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Salary, hiring, promotion, post layoff hiring

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Pay Reductions

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

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

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Other limiting factors: employment agreements

Attrition Reductions

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Job reduction through attrition:

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Savings by not filling vacancies

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Vacancies can easily be filled when conditions improve

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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

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

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Must ensure that employee performs no work during that week

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

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Reduced Work Schedules/Furloughs

FLSA limitations on reducing exempt employee salaries

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Employer can require exempt employee to use vacation during Furlough

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

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

Involuntary Reductions in Force

Three Types of RIFs

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Position elimination: position is completely eliminated

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

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

RIF Recommendation 1: Preparation

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Use objective selection criteria for RIF selection between employees

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Most objective: length/seniority of service

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

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Determine if WARN or state mini-WARN applies to RIF

RIF Recommendation 2: Establish Criteria

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Document criteria used to choose between employees for downsizing RIF

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Rank employees separately for each facility, classification and work shift

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

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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?

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30-day and 90-day analysis

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If yes, provide timely and complete notice

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60 days prior to facility closing or mass layoff

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

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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:

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In writing

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Not Misleading

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Plain language

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

Special Requirements for Group RIFs

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

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Must inform employee in writing:

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Group covered and the eligibility factors

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Applicable time limits for execution of waiver agreement

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

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

RIF Recommendation 4: Implementing the Reduction

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Articulate “why” positions are being eliminated

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Communicating with employees who are subject to the RIF

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Enhancing Post-RIF Morale

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Redefining the organization

Voluntary Exit Incentive Program

Voluntary Exit Incentive Program

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Permitted by federal OWBPA

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Few state law issues

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

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

Examples of Exit Program Groups

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

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

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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

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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

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No rescission or withdrawal from Program after employee elects to participate

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

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If insufficient participation, next step may be involuntary RIF

Benefit Options

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Supplemental remuneration

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Early work release

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Vacation payout

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Continuation of medical coverage for 60 days and premium payments

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Benefit Options

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

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Criteria:

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Enter into retirement

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Directly from employment with the organization conducting the Program

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

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Benefit Options

Extension of retiree moving allowance (up to 3 years)

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Criteria:

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Enter into retirement

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Directly from employment with the organization conducting the Program

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Has not received retiree moving allowance from another denominational employer

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

Benefits of Voluntary Exit Program Over Involuntary RIF

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Employees elect whether to cease employment

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Less damaging to employee morale

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Retain lower-paid and potentially higher motivated employees

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Fewer legal challenges

Disadvantages of Voluntary Exit Program

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To be successful, incentives must be offered beyond NAD policy

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Program may be more costly than RIF in short term

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Loss of experienced employees

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Takes more time to implement than RIF

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30 days for election to participate

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45 days to sign separation agreement, 7 days to revoke

Voluntary Exit Program Considerations

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

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Do not reserve the “right to reject” volunteering employees

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

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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

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

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

Voluntary Exit Program Documents

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Introductory Letter to Eligible Employees

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Notice of Program and Terms

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Personalized statement of Program and benefits

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Employee Election Form

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Waiver and Release Agreement

Voluntary Exit Program Documents

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Frequently Asked Questions (FAQ’s)

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“Reminder” letters to eligible employees

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Timeline of actions

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Involve attorney from the beginning of Program development

Elements of the Introductory Letter to Eligible Employees

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

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Explains eligibility criteria

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

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Identify with whom the employee may discuss the program

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States the Election Deadline

Elements of the Program Notice

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Explains eligibility criteria

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Explains election process and deadlines

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Explains exit incentive benefits

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Explains separation agreement and timing to sign agreement

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Reiterates that the program is voluntary

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Contains at-will employment statement

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Provides contact information for questions

Elements of Personalized Statement

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Specific to each individual recipient

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Explains how the employee meets the eligibility criteria

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

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Explains the program election process, deadlines and requirements

Elements of the Release and Waiver Agreement

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Important dates

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Last date of employment

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Date agreement provided to employee

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Consideration period

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Revocation period

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Elements of the Release and Waiver Agreement

Benefits provided to the employee (examples)

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Salary through end of employment

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Supplemental compensation

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Paid days off

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Reimbursement of medical plan premiums

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Legal claims the employee is releasing

Elements of the Release and Waiver Agreement

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End of employment issues

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Confidential information

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Return of facility property

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OWBPA decisional information required by OWBPA

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

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

Questions and Answers