Donald Trump makes it look so easy. “You’re fired,” he declares firmly, terminating an aspiring apprentice from the popular reality TV series, who will never be seen from again.
In reality (and reality TV is not reality), the issue of termination is far more complex. While the vast majority of residential building employees are hardworking, ethical, and all-around assets to the communities they serve, one does occasionally come across the proverbial “bad apple.”
Whether the issue is sloppy performance, foul attitude, or outright illegal behavior on the job, sometimes co-op or condo administrators have no choice but to terminate the employment of staff members. This process can be complicated when, say, a super (and possibly his or her family) lives in the building, or when a supers' union objects to the termination. Let’s take a look at the ins and outs of termination.
Say a surveillance camera catches a super breaking into the penthouse apartment and making off with a laundry basket full of cash and jewelry. Pretty simple case, prospectively…you should fire him immediately, right?
The answer, unexpectedly, is both yes and no.
“If the guy hits somebody, or you catch him red-handed stealing, you call the police, and file a police report,” says Peter Grech, director of educational services at the The Superintendents Technical Association of New York City.”
Calling the police is the right move, but it also allows members of the board to pause before deciding to take away someone’s livelihood. “I would never fire someone right away,” he continues. “You tell him to go home; he’s suspended until you decide what you’re going to do. That way, you don’t fire someone in the heat of the moment. Take a breather before firing someone…believe it or not, the judge likes to see that.”
The “breather” need not be long. “If there is a spectacular failure like if a doorman fell asleep at his post—that could result in an immediate suspension or termination,” says Dan Wurtzel, president of FirstService Residential New York, a nationwide property management company. “Or if an employee was caught breaking into somebody’s apartment—unauthorized access -- they may have taken something, there’s no progressive discipline. He’s out.”
While there are certainly cases of building employees breaking into apartments and stealing—or worse, sometimes—most terminated employees lose their jobs for less serious offenses. Most failures are not spectacular, but rather incremental. Much of the time, there is gray area. Yes, theft is an automatic case for termination. But what if the doorman has alcohol on his breath…again? And, further complicating matters, what if everyone loves this doorman and he’s good at the job, elsewise.
“If he’s drunk, you as the manager or super are not able to determine if he’s drunk or not. That can be a sticking point. Do you have a medical report?” asks Grech. Probably not…and indeed, he might have alcohol on his breath from the previous evening’s engagement, and not be legally intoxicated. “So…you don’t fire him for being drunk. Instead, you send him home for being not able to do his shift. Reason being, he’s not coherent, not walking properly, stumbling…everything that tells you that he’s drunk, but without saying the word ‘drunk.’ You send him home. And then if it repeats, you can fire him.”
As for the doorman’s popularity, his termination will likely cause a stir among the residents of the building. No one likes to see someone they like get fired. Popularity, though, is not a compelling reason to keep someone on the payroll. “The problem comes when an employee is bad, but the people like him anyway,” says Grech. “That can become an issue.”
Intoxication, alleged drug use, spats with residents, loafing on the job…none of these are unequivocal. Boards have to do investigations, or have their property managers do them, to determine what happened, and if it justifies sacking the employee.
“In some instances, there may be an event that you feel warrants termination, but you don’t have enough information to decide if it’s the right course of action,” says Wurtzel. “In those instances, you would suspend an employee indefinitely, pending an investigation of the matter. Then the managing agent does an investigation, they would inform the board when it’s concluded, give a summary of the results and a recommendation.”
Without question, there are some really gray areas like job performance. Is an employee underachieving? Is it time to do something about it? “Whether or not an employee is in a union, you still need to follow procedures that include progressive discipline,” Wurtzel says. “If somebody doesn’t perform their duties or responsibilities, you talk to the employee…ask what happened, and you get his side of the story. If you determine that the person could’ve done a better job, you write him up. You make sure he’s aware of what occurred, and what the expectation is, and now you have a file on that employee, for discipline.”
From there, if the negative behavior continues, keep on top of it. “The rule of thumb to follow is…two write-ups, then a suspension, and then termination, within a reasonable amount of time. So if all this occurred within a year or a year and a half, that’s certainly a reasonable amount of time. If you’re talking about write-ups over five, six, seven years… that may not be enough, as far as a union is concerned.”
Margie Russell, executive director of the New York Association of Realty Managers (NYARM) in New York City, makes an apt analogy. “‘Three strikes and you’re out’ is not a rule that’s written down anywhere,” she says. “I tell people to instead think of a firing as a climb up a mountain. You have to prepare for the journey based on the difficulty of that individual mountain. If an employee has been in a building for 20 years, and you’re the manager, and the board or the owner thinks that it’s time to fire that person, it’s not going to be three strikes and you’re out. If you just find three ‘gotchas,’ you’ll lose in arbitration. No, it’s not going to take 20 years, but the road to a successful termination or rehabilitation of an employee has to be consistent with the amount of time he has served.”
Arbitration hearings tend to give the benefit of the doubt to the employee—especially if said employee has been at the same building for many years. After all, losing a job you’ve had for decades is a harrowing experience, whether guilty or not. “I had a man who was caught red-handed in someone’s apartment, and the arbitrator said,
‘But he’s got twenty years! You can deny him access to the keys, but you just lost this arbitration, because you fired him on the spot,’” says Russell. “That one was a learning experience.”
If a unionized employee wins in arbitration, the nightmare outcome occurs: he’s back at his job, and he’s not happy with you. “The worst-case scenario is when the employee wins the arbitration, and now he’s back in the building and rubbing his victory in your face,” continues Russell. “You don’t want to have that, so it’s better to go the extra mile while things are still under your control then to have the fired person come back six months later with six months of pay.”
Once the board has determined, beyond the shadow of a doubt, that an employee needs to be terminated, the next step is notifying the employee. The “Donald Trump method” is not recommended. How the news is communicated, and how long after the incident or incidents occurred, goes a long way in winning arbitration.
“The overriding arc is the compassion,” Russell says. “There’s any number of learned people over the ages who have espoused the idea that, when you have power, you have to use it wisely and judiciously. Unfortunately, when we are confronted with firing someone, we become our nasty selves. And that’s when we should become our more compassionate selves.” In other words, imagine that you’re on the receiving end of the message, and act accordingly.
“The majority of people who get fired are not evil people,” Russell continues. “They screwed up, and they didn’t fix it in enough time, and the firing stuck. But that doesn’t mean that the people who have to deliver the firing experience have to be nasty about it. Because everyone in the building will know if a fairing went down nasty, or if it went down compassionate. So if you’re the person in charge, like the superintendent, resident manager, board, or manager, people will judge you on how you treat your employees.”
When you fire a unionized employee, you almost inevitably wind up in arbitration. It’s part of the process, and no reason why you should retain a bad employee. But arbitration still is a hurdle.
“The arbitrator is interested in only a few things,” Grech explains. “Number one -- is the employee guilty of whatever you’re accusing him of? Was he the guy who didn’t do his job, or was it somebody else that didn’t do his or her job? So you have to make sure that the person has culpability…that it’s him. Number two -- does he know what he’s supposed to do? Have you given him a job description and does he understand it? Number three -- did you give him the opportunity to improve? Did you give him time to adapt, instructions, and the right equipment?
You can’t expect a guy to shine the floor if the machine is messed up. So you need to prove at least those three things: he did it, he knows it was wrong, and you gave him the opportunity to cure. And then there’s a fourth thing -- was the termination warranted? Or was it too great a penalty given the offense? Once you prove all of these things, then the case will have a better chance of standing up in the arbitration.”
Grech suggests involving the union early in the process. “It’s also a good idea to invite the union in, at the time when you write the first letter. Talk to the employee with his union rep there. That way, you’re putting the pressure on the union. ‘I spoke to him, his union rep was there! What more do you want me to do?’”
Once the bad employee is terminated, the effect on a building can be immense. Other employees view it as a sign that their own jobs may not be safe, and often up their effort. And if a person was really a bad apple, he likely poisoned the entire building.
“A lot of the time the superintendent or the resident manager sets the tone for the building,” says Wurtzel. “They’re basically the captain of the ship. Their performance trickles down and has an immediate impact of the performance of the other employees. So if your superintendent or resident manager is running a tight ship, your doormen, your porters, and your handymen are all probably performing at that same level. They’re following the leader. Unfortunately, the opposite is true as well.”
In other words, a bad seed can ruin the entire garden.
Greg Olear is a freelance writer and frequent contributor to The Cooperator.