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Warnings and Corrective Action

Nothing in the federal, state or local antidiscrimination laws requires an employer to warn
an employee that misconduct and lack of performance will lead to termination of
employment. Likewise, nothing in the federal, state or local antidiscrimination laws
requires an employer to document past misconduct or lack of performance prior to firing
an employee. Nonprofit employers, like for-profit employers, should, however, always be
aware of the jury factor: jurors expect employers to “Be Fair.” Jurors sometimes consider a
failure to warn or a lack of documentation as evidence that the reasons advanced for
discharging an employee are not the true reasons. If jurors do not believe the employer,
they may conclude that the employer’s “legitimate nondiscriminatory reason” is a pretext
for unlawful discrimination.
In addition to the jury factor, today many employers, including nonprofit employers, have
personnel policies that provide varying shades of “progressive discipline.” Progressive
discipline plans generally provide that employees will receive oral counseling or written
reprimands for all but the most serious infractions prior to discharge. Employers that
ignore an established progressive discipline scheme expose their organizations to liability
because, as noted above, courts allow plaintiffs to introduce evidence of failure to follow
established procedures as evidence that the employer’s legitimate nondiscriminatory
reason for an adverse employment action is pretextual in nature.

CHAPTER 64. Overtime Compensation

a. The Law

The Fair Labor Standards Act (FLSA) (see Chapter 62) establishes minimum
wage, overtime pay, recordkeeping, and child labor standards affecting full-time
and part-time workers in the private sector and in federal, state, and local
governments. As noted above, the FLSA covers employers that have at least two
employees and earn an annual business volume of at least $500,000 per year, or
that are hospitals or businesses providing medical or nursing care for residents,
school and preschools, and government agencies. Even if these factors do not
apply, there may be individual coverage of employees who are individually engaged
in interstate commerce, produce goods for commerce, or work in activities closely
related and directly essential to the production of goods for commerce. Based on

the two definitions for FLSA coverage, many nonprofits are exempt from the FLSA’s
requirements. The WMWA, however, applies to all employers in the State of
Washington. Even when there is no enterprise coverage, individual coverage
applies where both the FLSA and the WMWA require, among other things, that
employers pay non-exempt employees overtime for all hours worked over 40 in a

WASHINGTON NONPROFIT HANDBOOK -223- 2018