Complications Hiring/Promoting ED

Backstory for context: Our org has been a 501(c)(3) since 1970. Until 2011, it operated as a fully working board, some compensated, with no employees. In 2011, they hired a part time employee, and in 2014 hired a full time ED. Over the next five years, a Business Manager, Development Coordinator and Office Assistant were added. Just prior to COVID, we had an ED, Business Manager, Office Assistant, and part time maintenance person. In 2020, our ED was put on a PIP. At the end of 2020, our staff was reduced due to COVID, as we were completely closed. The board at that time laid off the office assistant, and the ED. They chose to terminate the ED as a COVID related layoff rather than for performance issues, I think just because they thought that was easier. Now we are at my current challenges.

  1. Timing for hiring a new ED: We have two board members who were around at the time of layoffs. They have told that our state labor dept instructed that, to protect ourselves from wrongful termination claims, we must wait 2 years to bring back the ED position since the stated reason for termination was that the position was being eliminated. I have spoken to five different people at the labor and unemployment departments; several of them knew of SOME level of restriction, but all thought two years was not likely a thing, particularly given the unique situation of COVID. Has anyone experienced this, or know of any other avenues to find information?
  2. When we do hire a new ED: Our current business manager wants to be the ED, so I'm sure they will apply when we do post the job. They are qualified, but we have had some performance concerns. They are not enough that they are at risk of losing their position at this time, but will need to be considered when we start looking at who will be the most qualified applicant. This is where I get lost – we cannot currently afford both an ED and a full time business manager; the ideal scenario is having a full time ED, and a part time business manager (probably 16 hours a week), but it's possible we will need to eliminate the Business Manager position entirely for a while. So if we choose another ED candidate, it would mean greatly reducing this person's current role or possibly eliminating it entirely. How in the world does this work? It's like "not only are we not promoting you, we are basically firing you". My gut says there have to be some HR things flying around here?

*I am going to review this with our lawyer, but they are closed on Monday for the holiday. We have an emergency executive session Tuesday morning, so I'm trying to dig up whatever resources I can in the meantime*

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