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Monday, September 24, 2007

Headaches Caused by Someone Else

We recently had to fire the head of one of our satellite offices. Very shortly after his termination, it came to our attention that one of her new hires was not working out. We have a requirement that all employees at that office at that site are on call on a rotating schedule. The head of that office hired an individual who could not come in on that schedule. To further complicate things, this manager forbade anyone to contact HR on the pain of instant termination. Therefore, I did not find out about any of this until after her departure.

The problem is that we need to terminate this employee because he can not fulfil the on call rotation requirement due to a family issue. For other reasons, this employee is not completely working out, but this is the main issue.

The complicating factor (there is always at least two, aren't there?) is that this person is in a protected class and already feels that they are being discriminated against. This person was hired based on that protected class status because the site manager's former brother-in-law was a member of that same protected class and the manager thought it would be great to work with another member of that protected class. This person should never have been hired, because they can not complete the basic requirements of the job. A new job was created for him because the site head really wanted to work with this person to practice her Mandarin. The job he was originally hired for? The position is still open because we can't afford to hire someone else for it with him on the payroll.

Unfortunately, the former site manager is the only one who speaks Mandarin and no one else can communicate with this gentleman. As a result of this, this individual feels discriminated against and has made multiple complaints that people don't socialize with him as much as they should. This person has great conversational English skills, but he does have trouble with the technical side of things.

He was insulted when it was gently suggested that the company would cover ESL classes through an adult education program. There is relatively decent comprehension, but when there are safety issues involved (the job involves multiple areas where one could be seriously injured or killed), it is important to be able to understand instructions and warnings. When another employee yelled for him to stop what he was doing, he called the HR office to file a complaint that he was being discriminated against and treated like a child. The employee was doing something that, had he continued for another five seconds, would have broken a very expensive air filtration system for the hospital. He was also standing on a ladder in a loud room and one would have to yell to be heard in the first place. Perhaps it's a hostile work environment for him, but there is a good possibility that it may not be. We have sent the company vice president and the president out there on separate occasions to observe how people get along and investigate any allegations of a hostile work environment and found nothing amiss.

In any case, we need to let him go because he can not be on call. There is no way around this on call thing without other employees having a case for preferential treatment. Or if we let him go, are we going to be sued through hell and half of Georgia?

Well, well, well. If you appeared on my doorstep with this problem I'd say, "Ummm, I'm really busy right now, but my job share partner gets back from maternity leave next Tuesday. Can it wait until then?" Then I'd quickly shut my door and put my fingers in my ears and sing loudly, "I can't hear you! I can't hear you!"

Okay, it's not that bad. You do have some difficulties, and they all begin with your fired manager. Things like this, I suppose, are among the reasons you chose to terminate him in the first place.

One good rule of thumb when you have to fire someone in a protected class is to have the person who hired him fire him. That way the person has less of a claim of discrimination--after all, if Bob was willing to hire you in the first place, the termination must not be related to your race, gender or age. But, you can't do that.

You have a clear case of the person not being able to perform the job. Simple termination? Right? Of course not. This is because the person can perform the job he was truly hired for--helping the former manager learn Mandarin.

My solution? Since he can't do the "job" you need filled and you certainly won't replace him for what he is doing, you label it a position elimination and offer him a huge chunk of severance in exchange for signing a general release.

Yes, it's more expensive than saying, "sorry, but you are failing in your job." It, however, is less expensive than getting sued. So, offer the guy 3 months salary (or whatever your severance policy is) and extend his medical benefits (if applicable) for 6 months. In exchange, he signs a release saying he won't sue you. Make sure you consult with your labor and employment lawyer when you draft the release. There are a lot of things that should and should not be included in such a document.

Let this be a warning to all of you who are letting bad managers slide by. Bad managers do bad things, such as hiring people who can't do the job. Then the company has to take responsibility for such employees. Keep on top of your managers and provide training and development for them. And get rid of the bad apples as soon as possible.


bruce said...

Good grief, what a mess. Great advice from the Evil One on a (hopefully) tidy resolution.

If it were me, I'd still cross my fingers.

Ask a Manager said...

I agree 100% with this. Every word.

Anonymous said...

Question 1- What qualifies this person as a "protected class"? (How can I become a protected class-- just kidding)

Question 2- Why can't you "eliminate" the "position" he's hired for and give him notice of indefinite unemployment (don't know the correct term but mean- no definite recall date). Wouldn't that be legal, since the position was "created" especially for him and is now no longer needed?


HR Wench said...

Anon - It sounds as though the person is of a non-Caucasian race and therefore in a protected class. What more, the person has expressed he feels he is being singled out due to his protected class status. Therefore any action an employer takes carries more risk of a lawsuit than if the person was not in a protected class and/or not complaining he feels he is being discriminated against. Even if he is absolutely NOT being discriminated against what-so-ever, he could still bring suit AND win.
This is the "big deal" of it all. As an HR professional one usually wants to go with the less risky of choices - since one's job is typically to advise the company of risk and work to decrease that risk as much as possible while still being able to move the business forward.