Remedial Demotion

cappy

Situation: I have a supervisor that has problems. Some are real others are perceived by those that the supervisor oversees. After an exhaustive investigation it has been established that the supervisor is simply beyond their abilities. For the good of the organization and the supervisor we want to remove the supervisor from their current rank and place the supervisor in the next lower rank. We want to handle this situation as a remedial action with a performance plan for one year. This will not be a disciplinary action.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

 

So here is my question. Management may demote an employee (reassign, move or any expression that may fit) as the organization sees a need. I remember reading somewhere that if a reassignment, demotion, reduction in authority ETC. is a business move and not a disciplinary action, the company cannot reduce the employee’s salary. That is fine; we do not want to reduce the employee’s pay. Is there a FLSA or other employment law statute that any of you know of that would support this? I need something fairly concrete to present with my intentions.

IT HR

Cappy - you are part of a govt agency right?  Also are your supervisors covered by a collective bargaining agreement?  I know some of the supervisors where I am are part of a CBA but some of them are not, so that can play a role.

 

cappy

Yes that is correct; municipal governement.  We are in a right to work state so we are not covered by a CBA.

cappy

Learned colleagues I hope I have framed my question understandably. Basically is there a something that says that if a demotion is not disciplinary then an employee's salary cannot be reduced. I know that is an odd situation but I have real good reasons for handling this in this manner. I suppose that silence may mean that perhaps you are struggling with such a question as well. I'm willing to simply have your best guess.

CarolL1999

Cappy, I was interested to see if anyone had knowledge of such a restriction based on regulations, because I do not, and it seems to go against the principle of paying a wage based on the value of the job the person is being asked to do.  While the action isn't disciplinary, it is a reduction based on performance, or lack of performance, regardless of the reason for the non-performance, and is being accompanied by a reduction in duties, it appears.  So it would seem odd to me to prohibit employers from reducing a salary based on the new job duties.

 But, my own internal logic does not always match regulations [:D], so I'll be interested to hear others weigh in.

 

 

 

 

cappy

[quote user="CarolL1999"]

Cappy, I was interested to see if anyone had knowledge of such a restriction based on regulations, because I do not, and it seems to go against the principle of paying a wage based on the value of the job the person is being asked to do.  While the action isn't disciplinary, it is a reduction based on performance, or lack of performance, regardless of the reason for the non-performance, and is being accompanied by a reduction in duties, it appears.  So it would seem odd to me to prohibit employers from reducing a salary based on the new job duties.

 But, my own internal logic does not always match regulations [:D], so I'll be interested to hear others weigh in. [/quote]

You are right of course. I'm in a 'no good deed goes unpunished' type of situation. I just remember reading something and just wish to heaven I could find it again. Actually it is the higher ups that want to do this in this manner.

ctrezner

The issue on when moving an employee to a lower grade centers on does the grade he is going to justify the salary he is at.  If the salary is in range you have the option of not touching his money or reducing his money to some level in the new salary grade.  However, a reduction in pay is more likely to cause some form of litigation than a change in title and responsibilities.  Usually people are more sensitive to money than a change in rank.  It is easier to argue no harm no foul when the only damage is to ego and not pocket book.  The exception to this would be if you have a structured pay scale based on experience then it would be wise to go with the scale even if it means a pay reduction.  After all you are demoting for inability to perform and penalties to the employee go with that.  You just have to make sure that what you do is nondiscriminatory and not violating any employment contract,.

cappy

Thanks for your thoughts. Good reasoning.

I think at this point it is going to be a moot issue. After meeting with the attorney today any action at all was seen as very risky even with the evidence at hand. Typical scenario, supervisors want something done yet evaluations do not reflect what they want. IE trying to remediate instead of following a disciplinary procedure. I think that what has happened now is certainly for the best. Thanks anyway. 

TXHRGuy

[quote user="cappy"]Yes that is correct; municipal governement.  We are in a right to work state so we are not covered by a CBA.[/quote]

"Right to work state" simply means you are in a state in which it is illegal to have a CBA that requires the employer to fire employees who do not join the union within a certain time frame after being hired.  You can be in a "right to work state" and have a CBA.

CTrezner's logic is good, although the way it is stated presumes you have some sort of formal compensation system in place.  If you do, then you need to see if the person can make what they're making in the remedial position.  If they cannot, you have to decide if you want to deal with that exception or not.  If you don't have a formal compensation system in place, it's harder to justify why anybody is paid anything and it's harder to track if anybody is being treated specially or not.  Special is not always good.

"Different" is the harbinger of "questionable" which begets "expensive" and sometimes "illegal".  Will you want to do this with every person who you decide to demote for remedial rather than disciplinary reasons?  Can you distinguish exactly when poor performance results in a remedial demotion rather than a disciplinary one?  Often, poor performance is a matter for discipline.  Can you explain convincingly in your own mind why this one is not like that and why other disciplinary demotions were not remedial training demotions?

I agree that it's inherently less risky to leave a person's money alone as long as you are just talking about that one person.