Position Eliminated

Hi Everyone! I am new to this forum and have been having a great time reading the posts. Much good advice, and have taken some notes on the finer points of policy wording to implement when I get back to work on Monday. I think I have a question that hopefully has a simple answer-

Our company is downsizing and we have eliminated an exempt supervisory position. The supervisor was offered another position (lower pay and benefits) and asked to give his answer the next day. (The expectation that this supervisor would stay in this new position, if he even started it, is not high. Probably would only stay until he found another job.)
I was elected to drive him home, and he asked me while in the car if he was going to get his vacation. I told him that vacation was not available until it was posted, and it is posted on January 1st. Since he is no longer employed, he will not get his vacation. (In Georgia, vacation can be withheld if the terms are stated in policy. Our policy is lawyer approved and he will not get it if he is not employed and tenured on January 1st).
The next day, this supervisor came in and said he would accept the position offered.
Later on, he came in with a Doctor's excuse to be out of work until January 5th.
Call me cynical, but I believe he is not going to start in his new position but will make a claim for his vacation.
I am planning on advising the following:
This supervisor's position was eliminated. Therefore he is terminated and loses all tenure and benefits. A separation notice should be sent saying his position was eliminated so he can file for unemployment.
When, and if, he begins in his new position, he will be starting out as a new employee.
The doctor's excuse can be accepted as a reason for not begining his new position until January 5th, or it can be ignored as meaningless, since he is not employed anyway.

Thoughts?


Comments

  • 21 Comments sorted by Votes Date Added

  • I'll try not to offend you, but you asked if anyone had any thoughts. I think you're planning on jerking the guy around. Are you planning all of this simply to get around honoring the vacation? Sounds like a great way to send bad vibes and signals throughout the company as well as the community, not to mention potentially trampling on his FMLA rights and his ownership of vacation days. I would not have any incentive to stay with a company who pulled such shenanigans. I also have doubts that Georgia would not require that the vacation be paid out. You mention that you would advise the position had been eliminated, therefore he is unemployed, therefore he has no vacation. Is any of that covered in a policy statement about giving up one's vacation? You've offered another position in the face of a RIF and he has accepted it but has a medical reason for delaying the start date of the new job and you want to ignore that or call it 'meaningless' and have his hire date re-established altogether. Call me cynical (others have) but, I just fail to see anything positive, constructive or particularly ethical in your planning and thought process. Welcome to the Forum as a first time poster. I hope you'll continue to participate.

  • HI rickam, welcome to the forum. This is a great place to share opinions, stories and the like.

    Don D thoughts are relevant. I wonder about the expectations you mentioned that the supervisor would not stay in the job long. Was the job offer sincere? Was there any notice or severance associated with the RIF? Was this the only position that was eliminated?

    A one day turn-around to answer your company about the new job seems to have put this EE in a box. If the company was serious about wanting this EE to take the new job, I would think you would want to work with him to make it as attractive as possible. Otherwise why make the offer?

    Your comment about him no longer being employed are not accurate. He accepted the new job, therefore is still employed. Did your company intend for the vacation time to be lost and incorporated that thought process into the timing of the offer? You think the illness is a sham, so why not ask for a doctors note?

    Your instincts may be correct about this EE, but just put yourself in his shoes for a minute. Think about the shock and dismay this EE might be feeling and when looking for some sort of safety net, like some vacation pay to tide him/her over or to pay Christmas bills, or to fund a new job search, pay the rent, etc - your company did not appear to have anything for him. I gotta tell ya, I feel for the guy.

    I know RIF's are a fact of life and that adjustments must be made to keep a company healthy, etc., etc., but with the facts given, this one seems a bit cold. If it ever happens to me, I hope I get more notice and have some sort of safety net than has been described in this case.

    Please keep us posted. We all benefit and learn from every situation.


  • A more simple answer, but along the same lines. You made an offer to this ee requiring him to give an answer the next day. The next day, per your request, he gives you his answer which is to accept your offer. Now you want to rescind the offer. Here's my question to you, if you proceed to terminate this ee and he takes you to court, how will you defend your actions? Do you think a judge will accept your justification based a feeling for reneging on your offer? Bottom line, I agree your assessment is probably right on the money, but you could end up being a bigger loser if you come across as the heartless employer.
  • Thank you marc, don and ray! Excellent answers which help alot. This company is not that way at all, if fact the offer of another position is standard procedure to tide the employee over until they find another job. A fair percentage of "discharges" are offered demotion instead. Only one in my experience here has stayed in their new position past 3 months.

    Yes it does look like we are trying to withhold his vacation pay. We are. However, based on your answers here, I will recommend we treat his doctor's excuse (it is in writing) as a reason why he cannot begin his new position until the 5th. and see what happens. If he begins, then great! We will then advise him that his vacation has been used to pay the company back for the bonus he was paid by mistake, which he said he would return uncashed but did not. It will not cover the entire amount.

    There was one other supervisor who's district was eliminated and he has also elected to take another postion. I believe he will be fine, newly posted vacation intact.
  • >If he begins, then
    >great! We will then advise him that his
    >vacation has been used to pay the company back
    >for the bonus he was paid by mistake, which he
    >said he would return uncashed but did not. It
    >will not cover the entire amount.
    >

    Aren't you concerned that an employee has cashed a bonus he was not entitled to? Sounds like a bigger issue to me.



  • I have to agree with the other posters regarding this person's medical leave and the "termination" of his employment BUT I think you have a larger issue here regarding the bonus pay.

    If the employee received a payment in error, that money must be repaid. I would NOT recommend using someone's vacation pay to offset the erroneous payment without their written authorization. If this employee agreed to return the payment and has not done so, it is basically theft and should be treated as such.
  • Clarification! He was offered and he accepted another position. There is a doctor's excuse keeping him out until the 5th. He will be allowed to start his new position. The bonus check is a big problem but the company was not seeking repayment from him when his position was eliminated, because the thought was he is out of a job and it would be better to just write it off.

    However, now that he is saying he will begin in a new position, and because of the advice given here his vacation will be posted so he will receive his vacation, the company would like to reclaim what it is owed.
    Am I to understand that he must consent to this? If so, then we will get his consent.

    In hindsight it would have been better not to offer him a position, but as I said, doing so is standard procedure. We are learning a great deal from this, and hopefully will not let it happen again.
  • You must have the EEs consent to deduct anything from his paycheck (besides the mandates related to income taxes, FICA and Medi). The consent must be voluntary, in writing, and specific as to the description and amount.
  • How does an employee get paid a bonus check by mistake??
  • And if one did receive a bonus check he was not entitled to and agreed to return it and did not, it is an IQ test question as to whether the company should consider offering him another position with the company.
  • We didn't pass that test! Thanks for the straight talk!
  • You've received plenty of good discussion here. But I would just like to make one more recommendation for your future practices. I'm a little surprised that you would eliminate a supervisory position & only give that person 1 day to make a decision. Think about it from their perspective - a cut in pay & benefits requires much thought & research. Can they get by on that pay? What can they make somewhere else? How long will it take them to find another job? What kind of severance are they receiving? These are all decisions that the employee is weighing out for their future. Surely they are entitled to more than one day to make such a decision. I suspect that the reason that your previous experience has been that they accept the new position, but don't stay, is because they don't appreciate that kind of treatment & begin to look elsewhere.

    We recently did the same thing - eliminated a management position & offered him a demotion. We gave him 2 weeks to make the decision, which put him at the middle of December. He chose not to accept the demotion & resigned instead, but he asked if his resignation could be effective Dec. 31. We said "yes." He basically got 2 extra weeks of work (on top of 16 wks of severance), but goodwill goes a long way. Other employees know that we treated him with respect & did what we could to make the adjustment easier for him.

    2 weeks may be longer than you care to allow, but you might consider a future policy of allowing at least 1 week for a decision when you're offering a new position.
  • [font size="1" color="#FF0000"]LAST EDITED ON 01-02-04 AT 11:55AM (CST)[/font][br][br]I think I'll talk a little 'straighter' than my fellow forumites. Quit jerking the ee around. Crummy practices on your company's part - obvious ploy to offer another position & then have the ee refuse to take it, thereby avoiding UI costs & nobody gives out bonus checks as a mistake - nobody. Stop jerking ee around, give him his vacation & don't harass him on the bonus check & by the way, take your lumps for having anti-ee policies. Also, could you please publish your company's name as I would never want to work there and would want to encourage any friends in the area to avoid it if possible as well.

    You're new - sorry for the irritation in my response - hope you'll continue to participate. x:-)
  • I'm sorry you feel that way mwild. Perhaps if you get around to reading all my posts you will see that we are not doing the horrible things you are accusing us of doing. There is no attempt to deny unemployment and the offer of a new postiton is genuine. In fact I think we are in the position we are in because we have acted too pro ee, if you can wrap your mind around that. I do hope you feel better now that you have communicated your indignation, and I am most willing to take my lumps on this--but the situation is simply not as draconian as you imagine. Have a great holiday!
  • Rickam,

    Is your company a small company? Some of what you've described reminds me of my company 5 years ago... small company, rapidly growing, owners who hired clearly unqualified "friends" because it fulfilled their ego trips to "give someone a job." No clear job descriptions or duties, no policies. Truly, the place "flew by the seat of its pants" & stands as a testimony that God must provide some special protection to entrepenuers. They would have described themselves as "pro-ee" as well, because they did try to make good decisions about employees - problem was, they decided things case by case, & it was, inevitably, a very unfair system. So they found themselves in these dilemmas, just like you've described, because of the inconsistency of their HR practices. And they were absolutely "shocked" when they had to respond to DOL/EEOC complaints ("who's the DOL/EEOC anyway," they wondered?). Whether they were "pro-ee" would have depended on who you ask.

    If this is the phase your company is in, then there are specific strategies you can implement so that you don't have to referee these types of dilemmas anymore. I mean, really now, how do you accidently get a bonus check? What's wrong with you procedure that allowed that to happen? And what are you going to do to keep that from ever happening again? And here's one of my HR mantras when I'm in a debate with my CEO over an HR practice (because he can do some pretty squirrely things) ..."I'm trying to picture myself on the witness stand in front of a hostile jury explaining why we did this." He backs down every time!

    And btw, I hope you continue to participate...I was attacked the first time I posted...I think they practice "hazing"...reminds me of my old sorority days!

    Kathi



  • Actually mwild, if you offer a person a position that is less money, different hours or substantially different from the position they held and they choose not to take it, many states will still allow them to collect UI.
  • Knew that Cthr - I was just responding to the post as I was reading it.

    As to rickam - I did read all of your posts & still feel exactly the same. Glad you're participating in the process though - welcome to the forum. x:-)
  • [font size="1" color="#FF0000"]LAST EDITED ON 01-03-04 AT 03:42AM (CST)[/font][br][br]Actually Rickam, I felt exactly as MWild did and you thanked me for my frankness. Maybe I'm confused. From your posts, I viewed the company as heavy handed, scheming and anything but employee friendly. I inferred that the goal historically has been to offer someone a lesser job, knowing they would either reject it or take it and soon move on. In fact, you said so. I also inferred that there was an effort underway to retrieve a bonus from an employee under a claim of awarding it in error. It was also clear to me that you think you can manipulate the UI process, in an attempt to appease the employee. You as much as said so when you said that you would give him a letter about the position elimination so he could file for UI. A person can file for UI with or without a letter from the company. A letter has no effect on one's ability to file. If yours was a genuine effort to save him through the offer of reassignment, then the matter of UI would not even be on the table. The matter of giving someone one day to decide if they want a job speaks for itself and is a stand-alone example of a bad practice. And this whole scenario seemed to be couched in the debate as to how you might pull all of this off and keep from having to pay the man his due vacation. If any of us should go back and read your posts, I don't think it's MWild. Don't judge me harshly for my perceptions, after all, they ARE based entirely on what you have written. We need new and divergent opinions and thought processes on The Forum and yours is certainly welcome. I have no right to speak for The Forum; but, I can speak for me. x:-)
  • I like to think I am fair. I re-read my posts from the beginning and see that the reaction from this forum is justified.
    I have been viewing this as a termination, and not seeing that my company has chosen to make it a RIF.
    The position has been eliminated, however the supervisor should have been terminated quite a while ago for performance and causing discord among his co-workers. It has been a sore point with me, and it is this that has been uppermost on my mind when I wrote my original post. Now I am simply glad he is gone and we should pay the price for harmony.
    I am going to advise that as such, the supervisor be granted his vacation and I am also going to recommend severance because of the short notice. The bonus was mistakenly paid. This I do know. Since we did not demand repayment when it happened, then it too should be written off and forgotten.
    Once again thank you all for helping me take an objective look at this.

  • I hesitated earlier to suggest that there had to be more to the story, such as performance issues. It is not an infrequent occurrence when poor performance is not documented and the issues are allowed to 'slide' because supervisors have a hard time confronting these issues and still trying to win the popularity contenst. The story appears way more 'round' to me now. I congratulate mwild and don and others for speaking their minds. I had a lot of similar concerns but traded tact for plain speaking. Perhaps I have allowed the new PC atmosphere to cloud some of my discourse?
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