Position Elimination & Work Comp

WITracy

We are going through a RIF due to losing one of our largest clients. One position that is set to be eliminated is held by a 16 year employee who currently has an active work comp claim. She has been back to work (full schedule, no restrictions) for several months but is still in physical therapy. Should this have an impact on our timing? She is a one person department where her responsiblities will be absorved into another area of the business. Thoughts?

marc

Make sure your documentation is together. RIF's are never fun. The protections afforded the various groups, ADA EEs and others are in place to make sure they are not singled out or treated differently than other EES because of their protected status.

Balloonman

As long as all of your documentation is in order you should be fine. ADA does not protect her, she is not disabled, and in fact, back to work full time no restrictions. As long as you have sound business reasons, and are not impacting a single protect group with the RIF you should be okay.
My $0.02 worth!
DJ The Balloonman

Pork

WITRACY: Where the planning has taken place and a RIF action for a particular position is the order of the day, then move forward and remove the position from your inventory, a proper decision.

NOW: you are ready to look at the people issue. Identify all employees effected by the reorganization, look at their past history and performance of the individual and the potential worth in some other position in which she could be employed. Look at your company written policy on "Reduction in Force provisions"! Identify the appropriate course of action with each riffed ee. If seniority is a part of your RIF plan, you must look at the "last person in, being the first person out concept".

The fact that she is a one person department has little relevance, the functions may not have been resolved and you may need to consider this person to go with the a majority portion of the funtions at a lesser rate of pay and a lesser level of responsibility and accountability and even in a different location.

In re-organizing, one should never entertain the "what ifs" based on faces, only do the "what ifs" based on functions.

I too hate RIF actions, but it is one of the more nasty aspects of the position, it just makes it a lot simpler if one deals with the functions first, then consider our beloved people! May your day be Blessed, FOR IT MAY BE THE ANSWER TO HER PRAYERS AND HELP THE EE TO MAKE THE RIGHT DECISIONS IN LIFE. IT COULD BE THAT SHE IS DESTINED FOR BIGGER AND BETTER THINGS. YOU DO NOT NEED TO BE IN THE WAY OF THE GREATER WILL!

PORK

WITracy

Thanks for the feedback - I needed the reassurance.

Here's the 2nd twist to this situation:

In one dept of 7 employees (all hold the same position) we need to cut 3 people. The newest employee who was hired about 6 weeks ago is the owner's nephew. Owner has made it very clear that nephew is not going anywhere. I'm VERY concerned about the morale impact this will have but owner is standing firm. Are we looking at trouble that goes beyoned employee relations with this?

Pork

[font size="1" color="#FF0000"]LAST EDITED ON 06-09-04 AT 07:44AM (CST)[/font][br][br]VERY POSSIBLE, a direct family member would be less trouble than a distant family member.

If the plan calls for three positions to go, which are full time and regular employees completing the roster in those positions, then let the "chips" fall where they may. If you are in contact with the retained attorney, you might give him/her the heads up on this situation there certainly is a potential "glitch" in the plan. Wrongful termination and discrimination based on sex, race, youth vs age/ can all be very painful. If I am sitting in one of the three positions and you let me go before the young nephew is un plugged, you can bet this old man is headed for an attorney or just maybe just to the EEOC office. Your statement alone is enough to complete the case on my behalf. You might need to reassign this nephew to a different department a week of or so before you pull the handle on the gallows door!

PORK

Department of 7 employees and the company is going to eliminate 3 of those positions. Nephew is holding one of the 7 positions. Please tell us the age, race, sex, time in service of the 7 positions, include the nephew. Is the nephew a recent college graduate, is he full time, is he training to become a management person and in this department for a short period of training and then will move on to experience another departments function? Is he programmed for future ownership? ALL OF THE ABOVE WILL DECIDE WHETHER THERE IS A LEGAL ISSUE WITH THIS PERSON REMAINING OR STAYING AND CAUSING AN OPPORTUNITY FOR LITIGATION!

PORK

Shadowfax

I guess anything is possible, but I really don't see a problem - other than the one you mention of morale,. and/or a complaint about not following seniority if you have a policy or past praactice on that. Avsent letting go all of the guys over 40, or all of the other members of a protected class, I don';t see any legal issues at all.

psrcello

The retired president of a family owned company that I worked for a number of years ago used to have a favorite saying - "Nepotism is fine - as long as you keep it in the family!"

Pork

percello: Nepotism is not the issue, it is the question of Seniority and who leaves first discharged! Discrimination and wrongful or constructed discharge evolving from a planned "Reduction in Force" is the issue to which the company must be ready to defend in any court of law. From the information posted I can read that there is a discrimination action/effect in place.

PORK

WITracy

Pork: What is discriminatory about choosing to keep a family member employed during an RIF?

The decisions on who to cut were made based on performance alone, not seniority.

lynn2008

Unfortunately, I have had to engineer nummerous RIF's over the past 25 years. Closely read any policies or memos you have or that have been created over the years that talk about layoff's, terminations etc. If these lay a clear track (or any track) on how to perform a RIF, you could have problems.

Caution management on what statements they make to employees - have one united voice, to avoid making "promises" that become an employment contract.

Is the nephew a part owner at any level - if yes, you should be free and clear. If no, you may face the issues the other respondents have listed. Currently working in a long established family owned and run business, our employees would understand, if grudgingly, the family member would stay employeed.

Pork

WITracy: I don't know, it is Title VII that I would be concerned about. One never knows what any one of the three "eliminated faces" might alledge, but the nephew, who is, I assume is male, white, younger than 40 years of age, inexperienced, and maybe not disabled, possibly a military person returned from Iraq, or maybe is not degreed for the position. Again, I don't know these facts, the situation must dictate that these elements were considered.

Additionally, based on performance means the other four (4) employee's performance records are exceedingly stronger than any one of the RIFed ees; I have even had the experience and the allegation that looks was a considered factor, were the (4) retained ees the beauty queens or kings of the company? Was there special favors or perks provided these four employees which were choosen because they were willing to give additional hours "off the clock" to the company or to do the special income taxes of the company owner or President, one of these (4) even has a young child that is the spitting image of the President.

THE ABOVE IS ALL MADE UP BASED ON MY EXPERIENCES WITH SEVERAL EEOC CASES AND LITIGATION EFFORTS BY THE ATTORNEY "DAWG" WORLD.

These are thoughts that the company wants to be able to defend, if any of these things could come out in "discovery". These are real and one's that I have faced; the child grows older and resembles the President even more today than 10 years ago. If DNA was taken from both parties, the truth would be known, and the discrimination would be proven that there were favors provided to a protected person, until the company died.

PORK

Shall I go on?