Threading On Thin Ice--Need Advice!

TN HR

Well, here's another sticky one that I'm struggling with:

One of our department heads joined the company in January of 2003 and went out on maternity leave in June and came back yesterday. We continued her salary throughout her absence (a deal not sanctioned by me). Obviously, we did not have a legal requirement to do so, since FMLA does not apply.

She informed us yesterday that she would like to adjust her hours to a part-time/project/tele-commute scenario under which she would work 8-12 and then work from home. Relunctantly, our GM approves. This morning she calls out sick and he has second thoughts about the whole arrangement since during her short tenure was never really the star performer we thought we hired.

He wants to terminate immediately.

What is the best way to handle this? Should we offer her a severance and make her sign a release? Ask for a resignation?

I would bet my last Dollar that this is the one that would come back to haunt us in a major way, so I want to do this as cleanly as possible.....

THANKS IN ADVANCE TO ALL FORUMITES!

System

Why wait? You hired someone because you were willing to pay them to work. If she is not providing the services she was hired to do, you don't need her.

The longer you wait, the worse it will be.

"Sam"

Whatever

[font size="1" color="#FF0000"]LAST EDITED ON 09-23-03 AT 08:53AM (CST)[/font][p]You have an ee who started nine months ago and during this time was out for 3 months. She returns to work and after one day calls in sick. I would terminate immediately. It's only going to get worse. Unless you have a contract or
some sort of rule, I would not offer her a severance package. The company was more than generous when they gave her maternity leave.

Pork

TN HR: I believe that it would be most appropriate to send her a letter signed by the GM, for he is the one up set-up the "nasty bag of tricks" with which you are now having to handle. He should layout the terms, underwhich he felt it was appropriate to give this manager a special deal; followed with the terms underwhich her new future employment, as a part-time or a full time employee is to be. He should admit he put to much trust in her performance and went the extra mile on her behalf and now she must rise to the challange and get back to full-time employment. Part-time should be spelled out, and only as a special projects basis which could have a limitedlife expectancy. The new mom is wanting most to stay home and bond with new born but get your company to pay for her full time service with only part-time effort.

Given the individual does not accept this action, then cancel the employer/employee relationship based on attendance and the proven history of her "not being present for work as a full-time employee", which was the condition underwhich she was original hired and, subsequently, given a special agreement.

WE MUST ALWAYS WORRY AND BE CONCERNED FOR DOING THE RIGHT THING BY ALL EEs, REGARDLESS OF THEIR MEDICAL AND PERSONAL NEEDS. YOUR COMPANY THROUGH THE GM HAS GONE THE EXTRA MILE AND IT IS PAYBACK TIME; "BE HERE OR THERE BUT, NOT BOTH"!!!

PORK

mbeam

Agree with Pork's comments. Other aspect I would advise checking into is whether she was formally notified that FMLA didn't apply to her. Thought I had seen something about a court case that indicated if a person goes out on leave believing that FMLA applies to her that she is covered under it.

What you don't want to find is a complaint filed for FMLA retaliation.

Would indicate that she was hired for Job X. If the parameters change (and working from home in the afternoon with an infant without daycare arrangements is an accident waiting to happen - I've personally tried - it's not feasible..) then the expectations with deliverables need to be spelled out. What about the job she was hired to do? It may be that the need still exists and it's not possible to do it part-time.

marc

I think your reluctant GM's approval of the new working hours has placed you in an awkward situation. Does the ee have time built up for sick leave? If she was being paid while on FMLA, she probably continued to accrue vacation and sick leave so you may have deepened the issues. If performance issues have not been documented, get them in writing. You do not need a pregnancy discrimination claim to further muddy the waters. In my opinion, getting expectations down in writing will help set the table. I would also, immediately rescind the telecommuting until a firm policy is established if you do not have one. There are plenty of issues around telecommuting that must be carefully thought through before traveling that road.

Don D

Employees and adults in general, just like children, learn from their experiences. When the company continued to pay her throughout the pregnancy absence, she learned that the company is a soft touch and makes poor decisions. The company 'taught' her that. So then she makes a run at cutting her hours, and as she expected, the company falls for it and again gives her just what she wants. The company reinforced what it earlier had taught her, that they are a soft touch. Then she 'calls out sick', knowing that the company won't do anything about that either. I say that if there is no contract you should move toward immediate termination. This situation will never get better. Severance? That's something else she will probably expect the company to do for her. But don't.

JM in ATL

Yup, this IS muddy water, but I intend to disagree with the other posters about terminating her immediately.

So your GM is disappointed that she is not the star performer he thought he hired... has he discussed her performance with her in an effort to help her improve?

He paid her for her maternity leave and gave her 3 months leave, which she was not entitled to by law.

Then he agreed to let her work the hours that she thought would be best for her.

Honestly, your bigger problem here is your GM and not this ee. He makes horrible personnel decisions and now that he FINALLY realized that it's not what he wants, rather than attempting to correct his errors, he just wants the problem to go away. HE created this problem. HE should have to deal with it and fix it.

Yes, your ee may be teetering on a very fine line, but she really hasn't done anything "wrong" other than call out beyond the allowed absences. Does she realize that that absence was going past the "allowed" amount. Because if she thought she was on FMLA leave, that leave doesn't apply towards the company's absences policy.

Your GM needs to call this ee in, put her back to full time, explain to her that "unexcused" absences will no longer be accepted and consider putting her on a probationary period where she will need to significantly improve performance, attendance and overall committment to her job and company. If this isn't something she is willing to do, she will resign and the problem WILL go away, but firing her is not the right decision in my opinion. It's the easy thing to do, to cover up stupid mistakes, but it's not fair to the ee.

But then again, I am not one for "just" terming employees when the water gets muddy. I like to build my staff and my team through coaching, counseling and support. Even if that means I have to fix someone else's problems or admit that I was wrong.

I hope that you do the right thing.

Pork

JM in ATL: GLAD TO SEE YOU ARE HERE WITH US, but, more liberal and influential with your GM than most of us have ever been. I, like "Dandy Don" and most of the other postings move for a permanent seperation.

This EE has been given way to much opportunity for her abused situation. You may save everyone of your herd of ees and enjoy every minute. My history and experience as a leader, trainer of leaders, and manager tells me this posting deserves a cut and move on, with every intent to have a personal training session with the GM, before we get into more serious trouble of total destruction of company policy and procedures and the future defense of other cases which potentially could be difficult to defend against claims of our true actions in this particular situation. No matter what our paper trail is the "physical trail of real actions" will always speak louder than words to the jury, which most likely will be dominated by women. Dominated by women only because of the reality of population available for the jury pool, women are out populating this world of work and society.

Sorry to disagree but the reality of my world tells me it is time to take hopefully the final action on this case and let mother be with her child full time.

PORK

mwild31

JM in ATL - I agree with everything you say, but not in the order of which you present it. My experience falls inline with Pork & Don D. on this issue. I would term the employee after ensuring we would not face any legal hurdles. THEN, I would do as you suggest: educate the GM and try to wrestle personnel decisions out of his hands. Every person I let go, I always play Monday-morning quarterback and analyze where things went wrong. Once I've picked it apart, I come up with a plan for what ought to occur with existing employees & new hires. In this instance, I would outline for the GM all the legal hurdles/precedence setting/potential disharmony of co-workers and bottom-line dollars to the company his decision cost the company & work towards remedies for the future.

moneyman

Responding to the ones in favor of termination: Do you terminate all employees after they have called in sick for the first day?

I know that there are other issues, it was said that she was not a 'star performer' but does this mean sub-standard performance? or attendance issue? If there were previous attendance issues then I would consider the termination. But, if the issues were on other matters such as production or quality, then calling in sick once is not an unusual occurence.

Pork

MONEYMAN: YOU SHOULD RE-READ THE ORIGINAL POSTINGS! This ee is a manager who has been given special considerations by the GM which took the event of the call in to the lowest level of the issues. Discrimination of a leader vs the corporate body against standard procedures for all ee's, to which the GM and Manager totally disregarded, followed by the GM having 2nd thoughts.

GOOD MORNING EVERYONE, WE ALL NEED A BLESSED DAY IN THIS WORLD OF OURS!

PORK

JM in ATL

I still fail to see what the grounds for termination are here.

Yes, I understand that this person called in sick after taking a three month paid maternity leave, but the leave was approved.

If it is a performance issue, then this needs to be addressed with the employee to improve performance.

I am not saying that this ee is the kind we all hope and pray for to come work on our teams, but at the same time, I don't see where she has done anything to warrant a termination. I mean if you term her for poor performance, and you are sitting there filling out the DOL UI questionnaire and you get to the question, was the employee notified that he/she was going to lose his/her job? Of course the answer is no. Did the employee receive any warnings? No.

If you don't mind paying UI, then I guess terming her would not be such an issue, but I DESPISE having to pay UI on termed ee's, and I fight it tooth and nail if it gets awarded. Usually, I don't have to fight b/c I have valid ground to stand on when I term an ee.

And honestly, if you would like to teach this GM how to appropriately deal with employee issues, help him fix this mess, which he created. Help him see his errors and how to grow as manager from this.

But there are several people here to think she should be termed, can you expound on your reasoning, so that I can understand why this employees termination is justifiable?

HS

PORK, there is no reason to 'yell' at JM. Please remember that all caps is signifying 'yelling' and it doesn't help to get a point across better.

I for one agree with JM in that I'm not apt to agree with a term immediately, but then I do not know all the facts of the situation, nor does anyone here. These are all just opinions of different members on the forum with the limited information we were given.

To term would depend on a lot of factors, but as a company, a precendent was set and it would seem that (the way it was worded) that now all of a sudden, she is not meeting the GM's requirements. The way I read it, she met his qualifications, he authorized a paid leave for her as well as the part time, and now he's realizing that as a 'new mom' she will be taking more time off and that will hurt his department. Be careful that this doesn't or can't turn into discrimination. Best bet, document, document, document! If she does not follow the companies policy on work schedules, she will fire herself.

moneyman

I guess the part I have a problem with is that there was a special consideration made and when the GM decided to do that, I think that he/she should stick to it. And I think that they employee calling in sick shuld be considered a different issue, would she have called in sick if the special arrangements were not made? Probably. So, why does this trigger termination discussions by the GM. If the GM didn't make the special accommodations and the employee called in sick, would the GM still think about termination?

The GM was having second thoughts, and that seems to be the big issue. So, shouldn't these thoughts on the arrangements be discussed with the employee first? Someone made a suggestion above about laying out the terms, clearly, which makes sense to me, and if the employee can't accept that then I think you can move towards termination. If the GM has decided that that this arrangement was not in the best interest of the company,then perhaps if the employee was told that after additional consideration, there is just no way that as a department leader they can have her out of the office part time working at home, then she would either accept being back fulltime in the office (as originally hired) or quit. I just can't see moving on to termination immediately and that was the point I was getting at by asking the question earlier.

mwild31

As someone in favor of terming the employee - let me outline my thoughts - not to start an argument - but just to present some of my reasoning:

This is a situation where business necessity collides with employee advocacy.

1. The employee wants to work 8-12 & telecommute the rest of the time - it sounds great - but from the post, it doesn't sound like there is a formal procedure/plan for telecommuting - hence the reluctance & the feeling that it's not working. So, from that perspective it's fair to go back to the employee and say in retrospect, the part time hours in house & the telecommuting won't work.

2. The trust has broken down between the GM and the employee and as she is a department lead, the employee & her subordinates, while she is still employed, will feel the effects of this distrust & production will certainly suffer.

3. If you don't terminate now, you may never have the opportunity to turn the boat around in regards to precedence setting. Meaning if the employee continues to work there, she will always be the new standard for which others will compare their requests with. Terming now, stops the comparison.

4. I don't believe that 'punishing' the GM into keeping someone he/she no longer wishes to have on their team - is the answer & it will pollute the relationship with HR.

Finally, I agree with all the posts that state the GM needs to be reeled in when it comes to creating policy & precedence setting - and this should happen after the employee is term'd.

moneyman

I think precendence has already been set in giving the paid leave, then making additional accomodations for scheduling upon return. I would hope that the GM would consider that for all other employees that follow. Now if the GM didn't really want to do that, then to re-think the position immediately would be the best idea. It doesn't really look good to go back on his word, but to admit right up front and early that this accommodation was really not the best practice isn't too much to swallow. Instead of thinking termination (unless the GM just really wants this particular employee out) the employee should be given the chance to work the regular hours. I don't know if she didn't say she was not willing to, or would just prefer not to. I am all for giving the employee a chance to adhere to the original schedule, then accepting a resignation if she feels like she can not work under those guidelines.

On another note, I was very lucky 6 and 8 years ago to have a very accomodating employer. I an office of 35 women, you might think that there would have been problems, but when I returned from my 4 week maternity leave, I was able to bring my son back into my office with me (all day) up until he was 6 months old. This was also offered to another pregnant employee who had her baby 1 month after me. I already had an office to myself, but they went as far as taking someone who had an office to herself and switching her with the employee who shared an office with 2 others in order to give her the same opportunity. When my 2nd son came along 2 years later, I was able to do the same thing. By the time the next employee came along, about 3 years later, we had different management and a sardine packed office so that this option was no longer considered feasible. We were lucky that there was never any trouble when they decided to stop this practice.

Steve McElfresh

TN,

Several thoughts:

1. I find myself with those questioning the termination, ASSUMING that managing and appearing to manage with fair/due process is something you want to do (for whatever reasons: legal, cultural, morale, moral . . .).

As I hear the facts, you have a short-term employee who went out on an authorized leave. She came back as expected, asked for a change to her job schedule, and that was approved. All the fluff about special considerations appears to me irrelevant. Those were management's choice, for whatever reason.

Then, she calls in sick. Because of that, her manager wants to terminate immmediately. Right?

Well, perhaps not just because of that, 'cause she is also not a "star" performer. Is she an adequate performer (e.g., at least on par with the lowest other continuing dept. head)? If so, why her? Do you have a practice of giving comparable people performance warnings and coaching to improve? If so, why not her?

Sounds to me like you have a wuss as a GM, who perhaps resents her for having out-negotiated him. And now wants to have you to give her the shiv in the dark of the night so he doesn't have to deal with what he has done. Maybe she should move over to Sales or Contracts where she could use those negotiating skills ( ;-} ).

Now on the other hand, if you have a practice of summarily terminating non-star performers without warning (and there are places that do), go for it. She should not be different. Perhaps she is within a probationary period that you have which provides for such a term. Great. But don't talk about doing it because she called in sick; that is a rationale you really don't want to be stuck with.

2. If the GM now has reconsidered and concluded that the job does not work with her (fully authorized) alternative schedule, fine. Tell her that and give her a little time to make other arrangements. And if she is not willing, treat as a voluntary term. She probably will get UI, but so be it.

3. When you say "offer her a severance and make her sign a release", I assume you understand that you can only offer severance conditional on a release. No one, of course, can be made to sign a release (if you want it to be valid).

Good luck. You really are stuck in the middle on this one. Let us know how it goes.

Regards,

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

mwild31

Question to all: should we all post our credentials after our posts?

Paul in Cannon Beach

[font size="1" color="#FF0000"]LAST EDITED ON 09-26-03 AT 06:25PM (CST)[/font][p]Welcome JM in ATL. Good to have you join us! Maybe you aren't new to the forum but its the first time I have read your response.

I side with those who would not term the employee at this point. If the GM is feeling nervous, rescind the telecommuting option by stating that its not meeting the needs of the company. Let her quit if she wants to. But I dont see grounds for firing her yet.

The GM seems to make knee jerk decisions, i.e.approving the maternity leave and OK'ing the telecommuting setup. I would do what you can to keep him from another knee jerk reaction: firing the employee after one absence.

I hope you will let us all know how this is resolved.

Paul in Cannon Beach

p.s. I have no credentials to post. I'm just a 12 year old with a computer and alot of ideas about how things should be.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-29-03 AT 11:28AM (CST)[/font][p]Only if you (a)Own your own company, (b)Have more than one airplane, or (c)Took more than nine years to get out of college. x:-)


(edit)
Don D.,
M.Ed., CBTD, OW-NF, SWRC, RMC, MSDC, M.D.F.T.

mwild31

Dang, I guess I'm going to have to start adding my credentials.



Just kidding - leaves me out.

Steve McElfresh

Don, you're an OW-NF???!!

I would have thought you were MW-NF . . . .

Regards,

Steve Mac


Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

moneyman

Okay, I'll bite. What do they all mean?

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-29-03 AT 07:05PM (CST)[/font][p]The one I paid for is the traditional masters. The meaningful ones are: Certified Bottle Tree Designer, Southern Weekend Roadtrip Club, Occasional Writer-Non Fiction, and Mississippi State Dad's Club. Oh, I forgot, I've paid more for that last one than the other's combined. Did I forget CTF, Certified Turkey Frier. I have several other certificates that are not publishable according to James' recent standards.

TN HR

Thank you to all who offered advice. Not sure on the course of action we will take yet, however, I have advised accordingly. I will keep you posted.

The take-away fro me on this is that I need to better control knee-jerk decisions made by management as they pertain to precedent-setting issues such as these. IMHO, this employee should have never been granted as much as she has been.

Thanks,

Gene

ritaanz

Gene: I think the advise you have been given by my colleagues is good. At this point, the GM should sit this lady down and explain tha facts of life. 1. The company has been MORE than understanding of her needs. 2. It is time to commit to her job responsibilities and obligations. 3. The job requirements require full time and her obligation is to meet those requirements. 4. Telecommuting, at first, seemed plausible but giving it more scrutiny will not fulfill the requitements. If she cannot arrange her schedule to meet those requirements, perhaps she can find another position with a better fit. I would not terminate because of the absence. I would require her to meet company expectations ASAP. No, I would not give her additional time to make arrangements for the child. This should have been done PRIOR to her coming back to work. I do not expect this woman to be there much longer.