wrokforce reduction and progressive discipline

GLC

We recently had another workforce reduction and one of the employees who lost her position was a supervisor. This supervisor has not been the best leader in this position. Her supervisor (male) had talked to her numerous times about her management skills, with little improvement. This has all been documented on her annual evaluations over the last three years. She was like a mother figure to her staff instead of coaching and motivating them to get their productivity up, always making excuses for them. She had been a supv here for about 5 years. Her team had the lowest productivity this year.

Typically, we would go through progressive displine when we are having an employee with performance problems but this was never officially done, but she was well aware they we were not happy with her. As I said, her first supv had talked to her and documented her performance problems on her evaluations. She did get a new supervisor (female) this year who started the progressive discipline with her. She had given her a verbal warning and many other informal conversations about her performance and her team's performance. She is now claiming that we did not go through the progressive discipline with her before we eliminated her position.

Our layoff policy focuses on performance, with seniority being last. She has claimed gender discrimination as well which is another issue. Do you think she could have a claim against us because we did not go through the formal progressive discipline with her. When a company needs to reduce its workforce, they really don't have time for progressive discipline? What do you think?

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 03-06-03 AT 11:03AM (CST)[/font][p]Here's what I think. The elimination of a position, thus its incumbent, does not require the exercise of progressive discipline. If her discharge had been related to performance and she had a complaint/grievance/charge related to the company not following it's policies and procedures prior to discharge, that would be a different matter. The position was eliminated and the person holding the position was eliminated as a result. End of story. Well, sorta end of story. You know the drill about eliminating a position, then turning around and refilling it. She may then have a separate angle from which to approach you.

EDIT: I've read Baloonman's response and yours again. I'm confused. You say you eliminated the position. Is that a fact?

Balloonman

"Our layoff policy focuses on performance, with seniority being last. She has claimed gender discrimination as well which is another issue."

I read through this and thought, no problems from how I look at it. You have documented performance coaching sessions. She has not been performing adequately and there is some notes in file and most likely notes her supervisors have from these sessions. It would be nice if this was all perfectly documented in her file but such is life.

The first sentence above, combined with her team being the least productive seem like pretty strong evidence that the reason for letting her go was performance. I would not lose any sleep over it.
My $0.02 worth.
DJ the Balloonman

Gillian

I am not clear how much progressive discipline has taken place. You say it was not "officially done" yet also state that a new supervisor started the process. The undocumented disciplinary action might has well have never occured, because you cannot prove that it took place without the papers. The layoff is another issue, but if you laid this person off because of a series of performance problems only some of which are documented then you may have a problem. You should compare her documented performance (the new supervisor) to the performance of the males who were retained and see what that reveals. The documentation on annual performance evaluations is better than nothing but the plaintiff attorney question will be - if her performance is as bad as you say, then why did you not give her progressive discipline during this time period?

You say that in a layoff a company does not have the time for progressive discipline. That is true, but they may pay the price for not having time for progressive discipline at an earlier date.

Don D

I reread your post and am confused. You say you 'eliminated her position'. Then you seem to indicate that she was terminated for performance. If the position wa eliminated, not to be refilled, and she was a victim of that, discipline is not the issue. A RIF does not need to necessarily involve performance. If you eliminated positions, that's fine. The incumbents went home. If you got to the performance level in deciding who among them would be riffed, you have quite another issue.

GLC

The reason performance came up was because we looked at all incumbents in this program and felt we needed to eliminate two positions. Thus, we eliminated the two lowest performers. She just happened to be one even though she is a supervisor. The other person eliminated just happened to be on her team. We had to look at some criteria in order to decide who to lay off.

Gillian

Then you may have a problem, because the performance issues you are using as criteria were (in part) not documented, therefore they don't exist.

GLC

The performance problems were very well documented. She is fully aware of the problems we had with her performance. The first supervisor has them documented in perf evals and other write-ups from discussions with her. The new supervisor has a write up on each supervision session she had with this employee. There are about 15 employees in this program. We had to eliminate two positions from this program because it was losing money. I feel as though we followed our handbook. What other ways could we have decided on which two people in the program to cut? See email below.

Gillian

Maybe another problem here is your use of the words progressive discipline in the context of layoff. Do you mean "performance plan"? If that is the case, I went down the wrong road. If you meant performance plan and you didn't do one for her, but you did for others then you may still have a problem. Since you do have the performance documentation, there doesn't seem to be any overt discrimination or any areas which are really questionable, except for the possibility that she can make a case that she was singled out to NOT have a performance plan. Since it is a done deal, I would quit worrying about it until a letter from an attorney or enforcement agency arrives, and if it does deal with your questions then.

GLC

Thanks for hanging in there with me Gillian and Don D. This supervisor's husband is an attorney so I'm just trying to get as much info. as possible.

When I refer to progressive discipline, I mean (1) verbal warning (2) written warning (3)suspension (4) term. That is what we did not officially do. Trust me, she had numerous performance improvement plans. I guess what we didn't do was actually call them verbal warning, written warning, etc. even though we did a performance improvement plan. She can't say she did not get those because she signed them. This person would improve slightly then revert back to her old ways so it is our fault for not staying on her. We have a tendency to let people stay longer than they should. This pattern pre-dates me. I am trying to get mgmt. to see the harm it causes when we allow non-performers to stay for life.

Don D

The terminology 'eliminating positions' is problematic. When you eliminate positions, they go away, the positions do, and they disappear from the staffing pattern or the org chart entirely, with the understanding that you will absorb that work into other personnel. And your defense, should you need one, is much easier since positions were lopped off as a business necessity. That is not what you did. You eliminated people, by Department, using some ranking measure of some sort, which called for a review of personnel files and a ranking of people by certain criteria such as performance. That becomes much, much more difficult to defend. I'm not suggesting that you will need to, but I would lay odds on it. I defer to Gillian's advice in that case.

GLC

I am really confused now because this is the way our handbook is worded which was approved by our attorneys. The criteria for layoffs/reduction in force is

1. Possession of critical or needed skills
2. Performance history
3. History of disciplinary actions and attendance records
4. Length of service

Those two positions both will go away. No one is replacing them. Another supv. from another site will be managing that team now along with her own team so she will co-manage two teams. Since the staff reduced where the laid off supervisor worked, we did not need a FT supervisor there. When one is doing a reduction in force, what do they look at. I would think we would have to use something so we used mainly #1 #2, and 3 above. We wouldn't just draw names from a hat. Please advise.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 03-06-03 AT 02:53PM (CST)[/font][p]It depends on how the company decides to structure its reduction in force. We just went through this last week. I advised the officers that they could/should consider any one or a combination of (1) by department, (2) by location, (3) by position. Eliminating positions is the easiest to defend and provides the most obvious solution. For example, eliminate the Purchasing Manager and Billy Bob is in that position. The position is eliminated and so is Billy Bob. Nobody had to necessarily pull a personnel file for that decision. Eliminate by department and for example, two out of 16 engineers have to be riffed. A decision has to be made to use for example either strictly seniority with the company, time in position or performance. Eliminating by performance obviously causes a great many hours of grief getting ducks in a (good) row. What we did with shift supervisors was this. We had a total of 12. We cut that down to 6. We had to cut 6 and we did it by utilizing the past three years performance ratings. The bottom 6 went to the house. Period. That will invite challenges but we're ready. We eliminated a total of 6 by that method and eleven positions were eliminated along with the incumbents. Follow your attorney's advice though, certainly. We did.