Is it discrimation?

bgrimes · August 2002

We are a commercial trailer repair facility and are always looking for good trailer mechanics. Trailer mechanics are rather rare, the trade isn't taught in 'tech schools' and is routinely learned 'on the job'. There are several 'trailer shops' in our vicinity. One of them is owned by a 'customer' of ours who frequently purchases commercial trailers from us. There must be a problem at the shop he owns because we are receiving applications from trailer mechanic who are still employed by his shop. I hired two such applicants several months ago, not knowing that the owner was a 'customer' at that time. The 'customer' called my boss and was quite angry that we had "hired people away" from him. We DID NOT solicit ANYONE. My boss does not want to lose this customer's business (trailer purchases). He told me NOT to hire anyone that applies from the 'customer's' shop. The applicants keep calling me to check on the status of their applications. One of applicants has actually 'quit' his job, but the others are still employed. My question: Could we be guilty of some form of discrimation for not considering these applicants? What would YOU do?

jpepler · August 2002

This is an interesting questions and one I've never really thought about.

We have a "gentlemen's agreement" with a couple of our neighboring companies -- they don't RECRUIT our employees from us and we won't do it to them. However, I would consider hiring an individual if they came to my company and completed an employment application. This indicates they are actively seeking a job change. My feeling is if you don't hire them someone else will.

I would recommend you or your boss contact the owner of the other business to inquire about the situation. Why are his employees suddenly seeking other employment?

As for the answer to your question, I don't know. It could, at a minimum, cause you to lose some sleep and some money if one of these applicants chose to file a claim.

Theresa Gegen TX · August 2002

The only type of claim I think an employee could make is that the decision not to hire them is some type of unlawful restraint on trade. That would be an unusual claim, and would take some research to ferret out whether there is any actionable claim. I wouldn't see it as "discrimination" unless there is some type of characteristic that all these applicants have (for example, if they are all minorities).

Since your boss has said don't hire them, I don't see where you have much choice. Although you might want to ask your boss about the one that no longer works there.

Good Luck!!

Carol CA · August 2002

How great is your need for people? If you still need to fill several openings, you might suggest your boss call the owner and let him know that you will not solicit any of his workers. He can reiterate that the owner is a valued customer and you don't want to do anything to lose his business. He can promise not to make the first move in hiring anyone from his shop, but if they apply for work, they will be considered like any other applicant.

I guess it really boils down to what is more important - the owner's business or hiring skilled laborers? If the boss decides retaining the owner's business is more important, you've got your instructions.

Don D · August 2002

I had almost an identical situation when employed in the trucking industry. We were one of the largest refrigerated transportation companies in America, based in our state's capitol city. Within 5 miles of us were our main vendors; a refrigeration repair co, two trailer repair companies and the Freightliner dealership which sold us thousands of $95k tractors. We all had an understanding that we would not rob each other's labor, particularly mechanics. It made good business sense and involved no illegal discrimination. However, if the job seeker was an ex-ee of one of ours, they were fair game for hire.

vmiller MO · August 2002

It is not unlawful "discrimination" unless the decision not to hire is based on legally protected status, i.e., race, religion, sex, age, ethnic or national origin, disability.

Restraint of trade could be an issue, but that would depend on a host of other factors.

Don D · August 2002

Aha, vmiller, but what if all the trailer mechanics down at "Roll Straight Trailer Repair" happen to be minorities and the company they are hoping to be hired by is the preferred trailer repair place in town and they have no way of getting into the loop because of the policy. Even though they will be able to clearly and quickly show that their protected class status 'gains' them disparate impact, I still feel there is no way they will prevail once the situation is explained by the company. By the way, you almost dated yourself with the "Paul Simon Comment". x:-)

Is it discrimation?

Comments