Why Don’t Nonprofits Fire Poor Performers and Jerks?

What values do nonprofits demonstrate when they fail to fire poor performers and jerks? Firing employees is very expensive because it causes down-time and rehiring. Failure to fire can be even more expensive. The failure to fire when needed is costly - it wastes money and damages the values of the organization, the corporate culture and the appreciation of stakeholders.

Here are some reasons I have seen and heard over the years for not firing. I have also given my comments on why nonprofits do not fire poor performers and jerks. There is a list of ten things organizations need to do about firing and some Internet resources at the end.

1. We are charitable people – when an NPO does not fire poor performers and jerks, the charity is taking from the clients and giving it to that staff person. Being charitable people is not what you are about. It is about pursing the mission and the vision of the organization, not performing as a welfare program for a staff member. You should provide the assistance to make them better performers, and less a jerk, but there comes a time you fire someone. Every organization has to be prepared for change. Every employee has to be prepared for change. Employees who fail to change are potential problem people and the issues have to be addressed.
2. It’s the organization’s fault for the poor performance because we did not train her/him enough – There can be some merit to this one. Many small and medium sized programs have little or no budget for staff (or board) training. Mistake! Those with government contracts and grants experience shifts in issues of contract compliance. What funders want can change annually or mid-stream. New technology and keeping up with new learning bring the need for training to be more effective and efficient. Training staff and encouraging them to know more and to do things better is worth the money. If you make that a low value, even from the beginning, you will be finding trouble meeting the mission.
3. Fear of retaliation – Fear of an unknown or even an educated guess for management is – well – stupid. If this is a vindictive person you are about to fire or have just fired, take whatever precautions you must. Change the locks. Remove the computer. Hire a security person for a brief time. Write down what it is you really fear in advance: what form can the retaliation take? Some of them may not be realistic. Be prepared and face it.
4. We don’t want to be sued – Let’s get this one straight. Anyone can sue any person about anything at any time. Got that? The object is, don’t lose. Got that one too? If you know or believe that the organization has not taken all necessary steps to comply with the law of the state and Federal government and adhered to contract compliance, your fear of losing should increase. Nonprofits should have appropriate and adequate insurance to cover the organizations, its board and leaders. That is a cost of doing business. But that does not replace doing things like firing correctly.
5. But he’s disabled, how can we do that? – No matter what legal protections may be in place for certain classes of employees, following the law in the process of firing is not a problem. If you have complied with the requirements of the law, you can fire any person who is a poor performer. The top candidate for a human resources job was a person who was disabled and used a wheel chair at all times. I called all the references. One had worked with the candidate and told me that it would be a great hire. I asked if there were any problems he was aware of. He said, well there was that time he chased a woman around the office, forced her against the wall and said he would bang into her. The candidate was fired immediately. Guess what I did.
6. What would a firing mean to the rest of the staff, conflict, and turmoil? – Be prepared to handle that if it may happen. My experience has been that most staff is relieved. They know when someone is not carrying their fair share of the load. Other employees who are not performing up to all the standards will see that can happen to them. They will probably improve or resign sometime soon. Before firing, develop your plan to handle rumors about the firing. The rumor mill is what hurts, not the firing.
7. It will lower morale – This is similar to #6 above but deserves special mention. This could be true. Watch out for this one. It may show that even though you were correct in the firing, one or more employees may think it was unfair. This is where leadership has to shine and keep staff on the mission. Morale can be restored with renewed confidence in the work at hand, the goals and objectives and the process used. Gripes are allowed in the work place. Limit the time they occur. This will really not be a problem if you are consistent in following the written policies and procedures.
8. I don’t think I can really fire that person who has been here since the doors opened up – Some years ago I fired the employee who had the longest tenure in the organization, over 20 years. Everyone liked her. But when she took a vacation, clients called asking about their cases. I could not find the files. I did find them stuffed behind the file cabinet including clients’ files who had not called. When she returned I confronted her with it. I told her she was fired She appealed my decision through the program disciplinary process and the termination was upheld. I told her when I fired her it was for cause and that I would fight unemployment. I did and she did not receive unemployment. Tough stuff? Yes, tough on the clients. Tough stuff on the reputation of the organization. Tough stuff if we had been sued for malpractice because that is what happened. She malpracticed. She knew her job and failed to perform. I also fired her supervising attorney for failure to oversee her work as required. They had worked together for years.
9. I don’t know how to go about it – Then you better learn. This is not a reason. This is your fault. Buy some books, take a class, look at the Internet resources linked below or talk to other NPO leaders immediately. See if the organization has the requisite written policies, procedures, standards and record keeping and a disciplinary process. I personally favor a progressive disciplinary process that allows for improvement on most aspects of the job.
10. I don’t want to fight her/his unemployment benefits – I understand this one. But let’s remember who is paying for those benefits – the organization. This is your choice of course. But do not fear challenging unemployment in the right case under your state law. Talk to your attorney if you have to.
11. They’re trying to do a good job – So what? The question is how long have they been trying to do a good job without succeeding? How has the leadership tried to help improve performance and for how long? There are times when you have to cut your losses. There are employees who are competent but do not follow through with it. They were once good and are now failing at work. The clients suffer. The mission and the vision suffer. Other employees suffer, become resentful and start to be overworked. If you have a policy that firing must be for cause, then document in writing what has been occurring, the remedial action taken and the failure of improvement. Do the same thing if employment is at-will.
12. They have their degree or license – If this is a qualification for employment, it is not an excuse card if the work is not being done. One thought on licensing. If the license must be renewed annually, verify it is. If continuing education is required, verify the requirement is met. I tried always to have a budgetary line to pay all or a portion of the cost for licensing and related continuing education. A degree helps get a job but it is not protection from losing the job. If you hired on the condition that a license or degree was to be secured within a certain period of time, and it is not, firing is the next step if you did everything correctly.
13. He’s got a lot of political or community connections – I have been called by congress people, mayors, judges and others supporting someone I should hire or have fired. I listened politely. Wrote notes as the conversation continued and dated the notes. I tried to defuse the anger or the arrogance of commanders. I explained everything in terms of policy – how we have a process for hiring and fairness in the process. I explained the process for firing and the fairness in the process of evaluations. I did not discuss the person or the reasons. I have been asked to reconsider. Without substantial support for me to do that, I said I am satisfied we did all we could and were supposed to do. I did not create an enemy and they did not change my mind.
14. She’s our IT person; she could close our technology down – Yep, in some cases that is really possible. When you are hiring an IT person, perform due diligence and verify recommendations and references as you do with all potential employees. A need to fire often is the result from a poor hiring process. Someone has to be the redundant person on technology who knows enough to protect the integrity of the system, passwords and information. It is one thing that you fired the IT person because she already compromised the technology. It is another to fear that retaliation as the result of the firing. One requires recovery, the other requires prevention. Either way you need backup not only of the information but also to get the equipment up and running again as soon as possible.
15. That’s just “Gretchen being Gretchen” – We all have our peculiarities. However, if “Gretchen being Gretchen” is Gretchen being a total jerk that interferes with the work product, it has to be controlled or eliminated. I had one fiscal person who was very competent and did the work appropriately and timely. But he developed a habit of having a drink during lunch. It grew to several drinks during lunch. When he came back to work he was obnoxious to everyone. Alcohol was in the air. It lasted for several weeks and was getting worse. I asked for a meeting in a neutral place - a restaurant for lunch. Before we ordered I told him that I wanted him to stop drinking alcohol at lunch because it was interfering with his abilities and he was being a jerk to staff. He ordered a diet soda and the problem was alleviated. I never mentioned any threat. Not all jerks can change but you do have to start with talking with them about the behavior. In some instances you may need another manager with you. You will be talking about behavior, not the person. If they cannot change, they have to be fired. I am not minimizing that this is a sensitive area and requires caution.
16. She’s a single Mom and she needs this job and benefits or he’s had a lot of (physical, mental) problems recently – OK, I have to admit this one gets me in the heart and soul. It does. Most of the women I worked with over some 47 years were single Moms. They were great. I remember having a deposition in a case at the office and we had three babies there. We made accommodation for the case to go on. There are times that it all piles up. Many small and medium nonprofits know we do not pay adequate and comparable salaries and benefits. We can offer support from other agencies to help relieve the pressure. We can simply listen when needed. But there may come a time when the work suffers and continues going downhill no matter what you do. Be aware of the laws for disability. I have offered them and others an opportunity to resign if it appears irresolvable. In every instance they knew they could no longer do the job. They resigned. They are the people I missed the most. The going-away party did not bring closure.

Please realize that the greatest threat to the organization is none of the above. It is wrongful termination. The largest number of lawsuits against NPOs is wrongful termination. Management and leadership may have a lot of work to do to be ready to fire poor performers and jerks and win. Talk to an attorney about employment rights.

A Checklist of Things You Need

1. Improved hiring process, procedures and record keeping to avoid negligent hiring
2. Written job descriptions that reflect the real requirements, work, skills and expectations
3. Written policies, procedures and record keeping for annual evaluations that are fair, just, rational, forward-looking and legally defensible for all staff
4. Written personnel policies, procedures and record keeping including but not limited to fair, just and legally defensible standards of practice or work, disciplinary rules and causes for firing
5. Consistency in the practice of hiring, training, salaries and benefits, evaluation, discipline and firing
6. Periodic review of all the above to be certain they are up to date.
7. Clear evidence that employment is at-will, especially in larger print on all policies concerning employment
8. Getting rid of the word “probation” in all personnel policies. Probation gives the impression that employment somehow becomes permanent. If you need a certain period of time for new staff to take vacations or start in the pension plan say so, but do not call it probation.
9. Your organization may be egalitarian now, and may always be, but I have rarely seen it.
10. Getting your 501 (c) (3) is when you start these policies, if only in draft form.
11. Training of all management and employees about the policies, procedures and record keeping – all you need is some middle manager to do something stupid here.
12. Prepare an annual staff training budget
13. Talk with an employment lawyer

Please feel free to add to either list, to comment on any element or add to the Online Resources that follow.

Thanks, Don

Online Resources

Deciding to Fire
http://www.nolo.com/article.cfm/ObjectID/A0666D30-731F-4EE9-8DC622334DB0F9F8/

Employment At Will: What Does It Mean
http://www.nolo.com/article.cfm/ObjectID/AAD74992-4C86-44DA-8102A340BCEC520A/

The Right Things to do to Avoid Wrongful Termination Claims
http://www.workforce.com/section/03/

Basics of Firing an Employee
http://www.managementhelp.org/emp_perf/prf_issu/firing/basics.htm

Illegal Reasons for Firing Employees
http://www.nolo.com/article.cfm/ObjectID/E59AB29E-AE1C-40A6-BFAFDCF1E5210CB4/

Basic Guide to Staffing and Supervision
http://www.managementhelp.org/supr_dev/prsnlmnt.htm

Basic Considerations in Risk Management
http://www.managementhelp.org/legal/rskmgmnt.htm

Free Basic Guide to Leadership and Supervision
http://www.managementhelp.org/mgmnt/prsnlmnt.htm

Checklist of Human Resource Management Indicators for Nonprofit Organizations
http://www.managementhelp.org/org_eval/uw_hr.htm

Firing Employees FAQ - Answers to some commonly asked questions about firing employees, from limits on when you can fire to severance packages.
http://www.nolo.com/article.cfm/ObjectID/56AD023D-362A-4053-91E8F1ACD35A0963

Charities 'are afraid to sack people'
http://www.thirdsector.co.uk/News/DailyBulletin/848375/Charities-are-afraid-sack-people/FCD148A1619A09076A8DEFDC74F50F28/?DCMP=EMC-DailyBulletin

Suzy Welch on “Send the Jerks Packing”
http://bobsutton.typepad.com/my_weblog/2006/12/suzy_welch_on_s.html

Your Rights When You Leave a Job
http://www.nolo.com/article.cfm/objectID/380C5AEC-A63A-47D6-A399F8DCA4188684/104/150/146/ART/?e=b19b0000605102001