Recruit for Postion prior to termination

Sandy · September 2003

Can anyone tell me if it is legal to begin recruitment for a position if you have not yet terminated the current employee in Illinois. An employee will be put on a 30-day probation period however we are very confident that they are still not going to work out and are hoping to be able to start the process of getting someone hired so the position is not left vacant. Thanks!

mwild31 · September 2003

Sandy - I'm scratching my head here. If you want to hire someone new, do it. Out of curiosity, why would you continue to employ someone who is not working out ONE MORE day, let alone the entire 30-day period?

Sandy · September 2003

Mostly because there has not been any written documentation recording the poor performance. Employee was spoken to a few weeks ago that improvement needs to be made and to date there has been none.

mwild31 · September 2003

There's a whole other thread going on right now about At Will - is your state an At Will state?

Sandy · September 2003

Yes, Illinois is. Thanks for the info, I did read it (was quite a bit to take in). Was just more curious to see the legal ramifications (if there are any) to recruiting prior to the position being open.

Nrdgrrl · September 2003

Unless you have a state law, there is no problem. However, make sure that the ee does not know that this is happening. Imagine if they 1. found out, or 2. sent in their resume for the position not knowing it was the one they are about to vacate.

Don D · September 2003

But to answer your question, it is not illegal anywhere for an employer to run an employment ad, whether the position is filled, vacant or merely speculative. I have on 3 occasions had the encumbent send in a resume in response to a blind ad when the ad was for their position. Obviously they didn't get called in for an interview. That's one value of a blind ad.

Parabeagle · September 2003

One caveat I would point out. I went through this very scenario last February. We planned to terminate the incumbent for insubordinate behavior (which was documented), but the accounting supervisor was so short-handed that she could not equitably distribute the workload among other existing employees while we did a search. Consequently, since the employee was otherwise competent, we surreptitiously did a search and hire which took about a month, all told. We then terminated the incumbent. When the incumbent applied for unemployment, she was granted it even though she was terminated for insubordination. The rationale was that if she was so bad that we wanted to terminate her, we should not have waited until we found a replacement and continued to employ her. So it's perfectly legal to do what you propose, but depending on your state UI guidelines, you may have to eat unemployment on the terminated employee.

System · September 2003

Seems to me that was faulty preparation for the UI hearing. I would never have mentioned the running of an ad and interviewing candidates while planning to terminate the employee. The only thing the hearing officer needed to know, among the facts, was that there was poor performance, an ongoing analysis of that, and a decision to terminate based on documentation and the facts at hand. If the officer had asked me why we kept the incumbent on, I would have said we were thoroughly analyzing the entire situation regarding his/her performance and our options, which would not be untrue.

marc · September 2003

I agree with the twin. You may not win the case, but good preparation and a reasonable arguement can still go a long way in the right direction.

I see Don is working from home - don't you get enough of this during the day?

System · September 2003

Marc; you are one among many who knows I don't have the good sense to use my other password at home and had to create a new one. And James at the Forum couldn't help me with that, so my addiction is exposed. I'm thawing a ribeye and the local news is off and I picked up limbs in the back yard last nite. The Forum is all there is. My wife is walking around in a scanty thing that snaps at the (bottom) and I smell incense, but, Hey, the Forum comes first.

crawfod · September 2003

Twin, I won't leave you alone as the only one who checks on the Forum after work. Last weekend after checking the Braves and Vols websites at home I thought I would see if I could access the Forum. Well, of course it was there, same password worked, etc., although it's in a slightly different format than what I get at work. I just don't have the time to spend during the normal day, and this way is more relaxing. Even went to Har de Har's site for a few laughs. Whatever works, right?

Steve McElfresh · September 2003

Sandy,

I would agree with the answers you have been given, but suggest that they miss the point.

A common mistake for HR folks is to ask (and answer) whether or not an action is illegal. However, in many cases, like yours, the better question is whether the action creates unnecessary liability. And the answer here is 'maybe'.

IF you are seriously concerned about litigation in this instance AND you do not have a solid defense, at-will or other (and your 30-days suggests that the answer to both could be 'yes'), then you might want to imagine the line of questioning below while you are under oath (note that facts do come out in discovery and you should never, ever, even for a moment, consider saying anything on the stand but the truth). Please read with dripping sarcasm. Objections will be made, but the point will be made as well:

"Ms/Mr Sandy, if I understand your testimony to date, you 'gave' my client 30 days to improve performance, but even before that time you and your minions secretly began the process to hire her replacement. Right?
Are you in the habit of hiring redundent staff? Is yours a managment that encourages filling office space with needless bodies?
Truly, should we believe you incompetent . . . or deceptive?"

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

System · September 2003

...To which Mr/Miz Sandy might reply, "No sir, I would hope to not be thought of as deceptive or incompetent, either one. I've always been thought of as one who does right things. The thirty days you just spoke of; that was an extension, in fact, an extension of "X" other weeks that preceded that 30 days, for a total of some 58 days during which our management team and myself worked very hard toward the performance improvement plan we had laid out for 'Slow Cybil'. Incompetent, deceptive? No sir! Neither. My goal is and always has been to hire good producers and our company always goes the extra mile to bring people along, to offer the best training, to coach, guide, mentor...the last thing we ever want to do is terminate someone's employment and the records I've discussed here today illustrate that. Our management turnover rate is only 1.6% over the past eleven years. We just don't lose managers often, but when we must, we must. In the few cases, three of them in the past eleven years, three, where the person we hired just does not work out, in spite of our best efforts, WHICH WE CERTAINLY MADE HERE, then we just don't have other choices. Ballbuster Gears has been part of this community for the past sixty three years. We've helped raise thousands of local families and we've helped those families put hundreds of kids through college. No sir, we aren't incompetent. We do right things. If I knew my car was probably going to play out on me, I'd spent 200 bucks on it each week for the past seven, knew the air conditioner was failing, suspected the transmission was questionable, I think that I would be incompetent to NOT begin a tentative search for a new one, even as the current one continued to fail. To do less would have me walking for a period between the death of my old car and my purchase of a replacement. That's all I did. In order to keep the facility up and running and to do what's right by the nineteen other employees who report to and rely on this management position, I had an obligation to do what was right, to do what was right by the Company and those nineteen others who rely on the guidance of this particular management position; and that was to begin a search for a replacement in the event 'Slow Cybil' just simply could not come up to the expectations of the job."

Steve; will you please hand each person in the jury box a Kleenex while the plaintiff's attorney composes himself?

Steve McElfresh · September 2003

Don,

Cute speech for the courthouse steps, but it would never be allowed in your cross-examination. More to the point, I was simply emphasizing that asking if the hiring is "illegal" is an insufficient analysis of the risk.

In the courtroom 1) facts come out you do not consider relevant and may appear damning, 2) your actions will be interpreted cynically, and 3) all this will happen in a setting you do not control. Those factors need to come into your risk analysis.

I don't know enough about this instance to know how the facts would play out, or even whether litigation is a real risk. I do know that failing to consider these factors can be an expensive error. Knowing all the facts and weighing the risk against the business gain, Sandy might well go ahead and make the hire. No problem with that.

The mistake would be to decide it was OK solely because it is not "illegal".

Regards,

Steve Mac

Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870

Balloonman · September 2003

Well that is why they have blind ads. I within the last 4 weeks had an employee I thought was fairly intelligent, tell her supervisor she was going to begin a job search as she was unhappy. Her attitude dropped appropriately. After consulting the owners and her boss a blind ad was placed. SHe was also counselled on her attitude, and that if it did not change she would be unemployed. She has it pretty darn good here.
We identified 4-5 excellent candidates, then she changed her mind. (ie. found out there was no comprable position out there right now, so she told her manager she was no longer looking) We all know that is crap. Upper management agreed with me we should follow through with the candidates and replace her. Fact is once she finds something she percieves as better she will quit.
Her manager then changed his mind and decided to keep her. (read comfort and not wanting to train new employee). I strongly disagreed but the owners decided it was his department and employee and they would let him keep her.
When she quits he will be left in a lurch, and I will smile but not say I told you so. She was informed we were set to replace her, and told about the blind ad, which surprised her as she did not see it during her search.
With 1-800 fax numbers you can get that go straight to your computer, and free yahoo email you can conduct a search that will not be discovered.
Start now.
My $0.02 worth.
DJ The Balloonman

Recruit for Postion prior to termination

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