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Touchy Job Elimination/Restructuring
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Touchy Job Elimination/Restructuring
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Here's my story in a nutshell...
I have an employee who was hired six months ago to do a job for which he wasn't really qualified in the first place. (Supervisor who hired him who also wasn't really
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Forums » Topic Forums » Legal Forum » Touchy Job Elimination/Restructuring
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Touchy Job Elimination/Restructuring
posted at 4/26/2001 9:14 AM EDT
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Posts: 10
First: 10/13/1999 Last: 11/6/2001 |
Here's my story in a nutshell...
I have an employee who was hired six months ago to do a job for which he wasn't really qualified in the first place. (Supervisor who hired him who also wasn't really qualified to do HIS job is no longer with the company.) His supervisor never addressed the fact that this man is inept and not a good fit for this position. Here comes the fun part... Did I mention yet that he is 66 years old? Or that he had a heart attack a few months ago and was out on disability for 3 months. During his absence (and after the departure of his illustrious supervisor), it was determined that 1) he wasn't doing his job and 2) there wasn't a need for his position. I advised against termination at that point due to both his age and the fact that he had just come back from disability. Instead, we chose to restructure his position. In essence, he became a grossly overpaid transportation maintenance man (i.e., he changes the oil in our fleet vehicles). Fast forward... He's not working out in the grossly overpaid oil changer role, either. What we'd like to do... We'd like to eliminate the position and replace it with a position which would cover a more broad scope than just the auto maintenance. We need a general maintenance assistant-type position. This position would be at a much lower salary than he is making now (he's still making his old salary -- not an oil changer salary). He would be welcome to apply for this new position, but, frankly, he would not be qualified to fill it (After all, he can't handle the job he's supposed to be doing now, and the new position is this job plus a whole lot more). We would then hire someone qualified to perform the duties of the new position and our problem would be solved. Sounds easy, doesn't it? I know better than to believe that it is that easy. After all, I don't believe in the Easter Bunny or the Tooth Fairy anymore, either. In light of the fact that he's 66 yrs old and was recently out on disability for 3 months, I have advised his supervisors that we need to tiptoe around this one. Ok...so that's my story (sad, but true). Any advice as to how to handle this would be greatly appreciated. Thanks in advance for your help. |
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Touchy Job Elimination/Restructuring
posted at 4/26/2001 10:54 AM EDT
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Posts: 399
First: 4/26/2001 Last: 2/8/2002 |
I think that by making accomodation after accomodation, you're not only making a simple situation very complicated, you're muddying up the waters so much that a plaintiff attorney could make anything out of this he/she wants to. And your suggestion of ending his position and allowing him to apply for a position he's clearly not qualified for is a transparent subtrefuge that even the dumbest plaintiff attorney will tear apart in a heartbeat. It'll make you look really bad in front of a jury - perhaps to the tune of millions of dollars and a big payday for Dumbo Jr.
The simple approach is to document performance against standards that are objective and impartial and, if your employee can't do the job and you can document lack of performance, TERMINATE HIM! Nothing in any discrimination laws requires any employer to keep a substandard performer on the job! You just have to be prepared to defend yourself if it ever should come to a court case. |
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Touchy Job Elimination/Restructuring
posted at 4/26/2001 11:29 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
Has anyone ever approached th eemployee about his work performance? Does he even know that the company thinks he has performance problems? If he has been approached, what has been his explanation for their occurrence? Is he citing any medical causes?
If he is, take a look at ADA first to determine if you need to make reasonable accommodation. If you do, then try that. Then see what happens. If he isn't competent after trying reasonable accommodations, then you most likely have defended yourself against ADA violation charges if you do fire him (how many reasonable accommodations are available and how many you have to try before you conclude that he ISN'T competent in the first place are the $64 questions). If he isn't citing medical reasons for poor work, then proceed as you would with any other employee who has performance problems. That you know he has a heart condition is okay but DON"T TREAT him as disabled and don't refer to him as disabled or link any medical problems that aren't obvious or that he hasn't identified as the cause to his poor performance. But, by your actions so far, you may have inadvertently treated him as disabled. Did you do anything different for him in "restructuring" his job that you haven't done for any other employee who isn't known to have a medical condition? If so, you may have to go the ADA route at this point and try reasonable accommodations even if there is no medical evidence to show that he is ADA qualified. Nork is right. Take the competence perform issue straight on. Don't futz around by playing maniuplative games. It will make you look worse. |
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Touchy Job Elimination/Restructuring
posted at 4/26/2001 5:12 PM EDT
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Posts: 10
First: 10/13/1999 Last: 11/6/2001 |
I'm not sure that I was clear enough the first time around...hopefully these clarifications will help.
1. 66 year old employee was hired six months ago. 2. Both he AND his former supervisor (supervisor is no longer with us -- left voluntarily) are/were incompetent in their jobs. 3. Supervisor never addressed his lousy performance prior to his departure. 4. Approximately 3 weeks after former supervisor left, employee has a heart attack and was out of work for 3 months. 5. In his absence, we discovered the mess that he left before he went out on disability. We also learned that we didn't need him (or anyone else, for that matter) in the job that he had been doing prior to the heart attack. We eliminated the position, but allowed him to return in a different capacity (glorified oil changer) position because we thought that we truly had a need for a position like that. 6. He returned to work on Monday of this week. In four short days, it has become very apparent again that: A) He cannot perform the job duties of the new position either (this lack of ability to perform has absolutely nothing to do with his health in any way, shape, or form -- it's just that the man is an idiot -- period. He was probably an idiot 20 years ago, too, when he was healthy and fit.) B) We need more than a glorified overpaid oil changer -- what he is doing now is actually only a small part of what we have come to realize that we truly need. 7. We'd like to eliminate the position and replace it with a position which would cover a more broad scope than just the auto maintenance. We need a general maintenance assistant-type position for more than just cars -- we need him to be the maintenance manager's assistant. 8. This new position would be at a much lower salary than he is making now (he's still making his old salary -- not an oil changer salary). This is the part that I want to make very clear: Even if he were competent, fit, and employee of the year, we would want to eliminate this position and replace it with the other one -- not to accomodate HIM, but to accommodate OUR needs as an organization. In fact, his health doesn't really come into play in this at all -- he's been released back to full duty by his physician. 9. He would be welcome to apply for this new position, but, frankly, he would not be qualified to fill it (After all, he can't handle the job he's supposed to be doing now, and the new/restructured position is this job plus a whole lot more). 10. After interviewing all candidates, we would then hire someone qualified to perform the duties of the new position and our problem would be solved. I can guarantee you that it would NOT be him. Sorry for any confusion earlier. This isn't about ADA or age discrimination at all (heaven's we have a woman in her 80's who works for us -- come to think of it, SHE could probably do his job better than he does it now!), but about a genuine need for a new/restructured position, no matter WHO was in it. It's really about the fact that we need something different from what we thought we did. We really want to eliminate his position and start from scratch with a new, more comprehensive position. It's legitimate -- I just don't want it to LOOK like age discrimination or for any red flags to go up on this one. |
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Touchy Job Elimination/Restructuring
posted at 4/27/2001 1:16 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
You are not going to like this!
(1) You've given us WAY too much information. Did you know that it is very easy to learn the identities and the employers who post on this website? This stuff is NOT confidential. When you post on the web, its like posting a postcard message (with a return address) on the bulletin board at you K-Mart. (2) You have got to talk to legal counsel. I know you do not want to do so. I know you may not have an employment attorney on retainer (every employer should and the phone calls are cheap). I know you do not want to spend the money. But, when even a simple lawsuit costs over $100,000 to defend (and that's when you win), employers that decide not to speak to counsel before taking action are just being penny-wise and pound foolish. (3) A good plaintiff's counsel will tear you apart! This employee has been working in a "new job" for FOUR WHOLE DAYS, after having gone through a major life event (a heart attack) and you've decided he is not competent to do any job whatsoever. Meanwhile, the only way you have been able to assess his job performance is what he did while working directly for a supervisor that YOU ADMIT WAS INCOMPETENT IN HIS OWN RIGHT. Whose incompetence was responsible for the "mess." They guy who did what he was told or the guy who did the "tolding." |
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Touchy Job Elimination/Restructuring
posted at 4/27/2001 6:25 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
You say this is not about him buut about your needs. But just about every sentence you talk about his poor performance, or his age, or his health condition, or how he won't qualify for the new position, and how you want to get rid of him. You are making it about him.
If your company truly needs to elimnate the position and create a new one that will meet its needs, then do it. It may very well look like age discrimination or disability discrimination, partially because you are basing your action to eliminate the position and create a new one on him, not purely on your needs as a company. If this man were, 25 years of age, had been with your company for 6 months, and now management decides it no longer needs but wants to create a new one, what would you be doing with th employee? |
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Touchy Job Elimination/Restructuring
posted at 4/27/2001 8:06 AM EDT
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Posts: 10
First: 10/13/1999 Last: 11/6/2001 |
To answer your question:
"If this man were, 25 years of age, had been with your company for 6 months, and now management decides it no longer needs but wants to create a new one, what would you be doing with th employee?" ...I will even add 'and if he were a stellar employee' to that. We would tell him: 1. We have realized that what we thought we needed in this position is not what truly meets our needs; 2. That his position would be eliminated. 3. That we would create a new, restructured position with additional job duties and responsibilities. 4. We would post the new position and he would be able to apply for the new position. I would do the same thing for a 25 yr old, healthy, less-than-perfect, employee, too. In other words, exactly what we would LIKE to do in this case -- but the 'appearance' of age/disability discrimination would rear its ugly head in the present case. In all likelihood, the stellar employee would likely be able to work the restructured job and would likely be selected for the job. The less than stellar 25 yr old would probably not be selected for the position. |
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Touchy Job Elimination/Restructuring
posted at 4/30/2001 4:14 AM EDT
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Posts: 10
First: 10/13/1999 Last: 11/6/2001 |
We really DO need to restructure this position -- no matter WHO is in the role. We just don't have a need for ANYONE to do the job.
Instead of eliminating the position and re-interviewing for a new position, as we had previously hoped we could do, can't we just restructure it due to the fact that it doesn't fit our needs? The options would be job elimination vs. job restructuring. Can we do that with this one? The new job description would be very different from the current description, but if we don't make the changes, we WILL have to eliminate the position altogether and then we're back in the hot water that we would have been in the first place. Thanks in advance... |
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Touchy Job Elimination/Restructuring
posted at 4/30/2001 5:57 AM EDT
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Posts: 399
First: 4/26/2001 Last: 2/8/2002 |
I'm not sure what you mean by "restructuring". I suspect that the plaintiff attorney who takes the case will argue that the job requirements were rewritten (restructured?) to exclude his client (the one with the heart attack and 66 yrs old) from being able to qualify for it, a deliberate and blatant attempt on the part of the employer to circumvent anti-discrimination laws. Your next written document will the large check to your former employee, who will happily never have to work again because of the award.
You're in a corner, and there's no easy way out that'd be safe from a legal perspective. Let your employee succeed or fail in his present position, amass documentation that proves he can't do the job, and terminate. Talk to counsel. Get an attorney to review everything you do associated with this situation. Do not do this on your own or rely on anything written on this forum - these postings are our opinions based on precious little information and most of us aren't attorneys to begin with. |
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