Retirement Age

hrwoman

Hi, I'm new to posting questions. So, I hope I'm giving enough info. Also, if you saw this under the wrong topic previously, I messed up the first time posting. Like I said, I'm new to posting questions.

I have an employee who is 65 years old and isn't ready to retire. He's been w/ the company for over 30 years. He came back from FMLA leave in July and we accomodated him by letting him go to part-time. His return to work status stated he could only work 4 hours per day. This was a full time position. We have a new executive who wants to let him go. He needs someone on a full time basis and he isn't pleased with the employee's work performance. The employee has told the exec he wanted to start working more hours but still not 40 hrs per week. The exec has come to me asking if the employee has said anything about retiring. I told him no and I wasn't about to ask him as he is in a protected class. I told him not to as well. The exec said he can't do email, doesn't work on the computer too well and doesn't meet his expectations for the job. I told him that he needed to start documenting his performance if it wasn't meeting expectations. Any suggestions on the best way to handle this employee and higher level exec?

SMace

Sounds to me that you have handled it well. This new exec needs some work though. You have reasonably accomadated him (sounds as if he may be covered under ADA) since July and had no problems until the new exec comes in. I think you will have a hard time proving that you can no longer accomodate this gentleman. I would not want to defend it. So, you focus on work performance and treat him just as you would anyone else. If he cannot do the job follow your discipline policies to the letter as you do with all of your employees and go from there. Good luck.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 01-30-04 AT 03:48PM (CST)[/font][br][br]I see nothing in your post about an ADA covered issue. although you granted it, FMLA does not require accommodation. And just because you have tried to work with his release-to-return-to-work restrictions, does not mean that you must do that forever. If your analysis reveals that he is not ADA covered (an eligible individual with a disability), you are at liberty to tell him that the accommodation was a temporary gesture of the company and its time for him to step up to the duties of his job which requires full time attendance and full funtion. If he cannot do that, he has no FMLA protection and he has no ADA protection.

I'm wondering why an accommodation was granted in the first place, unless I missed it in your post. Also, if he's working half time has he lost his benefits? Do you consider this to be a part time position? It seems to be one now.

P.S: Tell your exec to back off the suggestions and notions of forcing the guy into retirement unless he wants to face an age discrimination charge. If you've dismissed ADA, stick with the FMLA issue. Is it a full time job? Can he perform the job's requirements including full time work?

hrwoman

It is somewhat confusing as we have undergone quite a few changes internally with top level execs and each had their own idea about keeping the position or moving position to corp. But when the employee came back from FMLA, we were going to move his position to our corporate office. Then it was decided that the position would not be moved to our corp office and that we would accomodate his disability and make this a part time position as business was slow. Now we have a new exec who wants a full time person in this position and can meet his performance standard. The employee wants to work more hours (at least 32 hours) so he would be eligible for benefits but the exec doesn't want him to as he can not perform the job adequately.

SMace

I'm unclear as to why you posted this again, but I would contact an attorney. Your exec has you headed straight for an age and disability lawsuit.

LV

I agree with Don somewhat. Are you confusing FMLA and ADA? Is he on intermittent FMLA? If he is not performing the essential functions of the job then you need to focus on this aspect. Document poor performance and give him an opportunity to improve. Follow your discipline procedures i.e. progressive discipline if you have it. When it comes to the final straw terminate or to not be too harsh you may offer a retirement or severance package under the Older Workers Benefit Protection Act.