Brian Carter
Brian Carter is a contracted employee hired specifically to design the software application needed for the online distribution sector. Performance and productivity have been minimal at best and his software design did not meet business objectives. A concern that Human Resources need consider is the injury that was sustained while under the employ of FastServe. The diagnosis of Carpal Tunnel Syndrome attributed to excessive typing may give Carter just cause to file a violation against FastServe if the injury is a basis for termination. Additionally, the injury occurred while in the employ of FastServe Carter may seek compensation as he may no longer be able to perform his current area of expertise, software design. FastServe could face possible violation of the Americans with Disabilities Act if Carter’s work oriented injury were the basis he was chosen for layoff.
Under the ADA disability is defined as ‘any physical or mental impairment that substantially limits one or more of an individual’s major life activities.’ Carpal Tunnel is a serious impairment of the use of one’s hands as even after surgery there are possible permanent limitations and nerve damage. ‘Physical and mental impairment’ includes physical disorders or conditions, disease, disfigurement, amputation affecting a vital body system, psychological disorders, mental retardation, mental illness, and learning disabilities (Reed, et al, 2004, p.464).
Due to the absolution of the online distribution sector Carters skills are no longer required for FastServe, employee will be terminated.
Sara Boyd
Boyd, a full time, dedicated, and loyal employee of 15 years, with extensive knowledge in the administration of FastServe, has served as a dispatcher for the company. The fact the Sara is 53 and protected by the Age Discrimination in Employment Act of 1967, HR will have to take careful consideration of her employment status. The Age Discrimination in Employment Act (ADEA) prohibits companies from employment discrimination of those 40+ and forced retirement. This act also can invalidate any retirement plans and labor contracts that are found to be in violation of the Act (Reed, et al, 2004). This Act is also a limiting factor to the Employment-at-Will Doctrine. Under the Employment-at-Will Doctrine, employers historically have had the right to discharge an employee without cause at anytime; “now, many federal laws limit employers in their right to terminate employees, even at-will employees” (Reed, et al, 2004, p. 416). Sara loses marketability at her age, which also in turn reflects on her ability to be retrained within the company. The job that Sara currently performs, dispatching will be transitioned into an automated innovation eliminating the need for her skill set. Sara has been chosen for termination due to the aforementioned reasoning. The company can justify this action due to the elimination of any personnel requirement for the dispatching area.
Nora Manson
Nora Manson is a contracted employee and has a high performance rating with a low level in productivity, has also played an integral role in the retention of two major accounts held by the company. Ms. Manson has been known for her strong feminist beliefs as well as for directing several other African-American employees to file discrimination complaints against FastServe at the EEOC office in the past. Ms. Manson is the only African-American employee being considered for layoff. Filing of a disparate treatment violation against the company will be a likely outcome of layoff. Disparate treatment of a protected class is prohibited by employers under Title VII. The plaintiff must use the Direct Method to establish that ‘race’ was the motivating factor for termination. A type of evidence that can be used is “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference discriminatory intent may be drawn” (HR-Guide.com, 1999). Ms. Manson could allege that her role that she has played in the discrimination cases filed by other employees is reason, alongside her race. Title VII of The Civil Rights Act of 1964 “prohibits discriminatory employment practices based on race or color that involve recruiting, hiring, and promotion of employees” (Reed, et al, 2005, p. 449). Ms. Manson has been chosen for retention under a 3 month probationary period determined by productivity. The company is justified in this action as the capabilities for increased productivity exist yet are not being used.
Jenny Mills
Jenny Mills is a contracted employee with an average performance and productivity rating. There has been an increase in absenteeism since pregnancy. Her role is a non critical position and her skill set is not needed within the company. A concern for HR will be Ms. Mills’s pregnancy if the proper justifications are not made if termination is sought.
The Pregnancy Discrimination Act amended the Civil Rights Act in 1978. Under it, employers can no longer discriminate against women workers who become pregnant or give birth. Thus, employers with health or disability plans must cover pregnancy, childbirth, and related medical conditions in the same manner as other conditions are covered. The law covers unmarried as well as married pregnant women. It also states that an employer cannot force a pregnant woman to stop working until her baby is born, provided she is still capable of performing her duties properly. And the employer cannot specify how long a leave of absence must be taken after childbirth (Reed, 2004, p 455).
Ms. Mills is chosen for termination due to the determination that she is a non critical employee, justifiable under employment law.
Careful consideration was used in making the layoff decisions. Use of past performance and productivity records and any applicable employment laws were weighed against any possible allegations before final determinations were made. Brian Carter, Sara Boyd and Jenny Mills are the three employees selected for termination. Although Brian Carter’s performance has been satisfactory, his VC++ expertise will be redundant with the plug being pulled on the Web sites. Carter’s diagnosis of Carpal Tunnel Syndrome was also considered in this decision; management determined that accommodating his skills in the new scheme of things would not be financially reasonable. FastServe will allow for making outplacement support available to Carter. In Regard to Sara Boyd, the dispatch portion of FastServe will become automated eliminating the need of any personnel to perform this function eliminating the need for her skills. Mrs. Boyd will be offered a fitting severance package for dedication and loyalty to the company for the past 15 years. Due to the elimination of the Web sites and cost cutting measures, Ms. Mills was considered to be a non-critical employee, therefore, selected for termination.
Conclusion
Declining revenues, increased costs, and competition bolsters the need for companies to become more efficient and productive, oftentimes leading to a reduction in workforce, also known as downsizing. Reductions in Workforce are a common source of class-action and multi-plaintiff claims, which are especially costly and time consuming to defend. When making the decision to release an employee from a position, especially in regard to the candidates in this particular scenario, a necessary balance of the legal risk of terminating individuals from a protected class against the business risk of losing valuable talent must be weighed. By creating clearly defined human resources practices a company is taking a positive step that may ultimately save a company from claims of discrimination. Seeking legal counsel when implementing actions that ultimately affect the termination of an employment relationship, as there are several laws that govern discrimination in the workplace which must be considered, is an important step to be taken. FastServe has made termination decisions taking the employment laws into consideration allowing for the reduction in workforce without any ramifications.
References
HR-Guide.com. (1999). HR guide to the internet: EEO: disparate treatment. Retrieved May 4, 2008, from http://www.hr-guide.com/data/G701.htm
Reed, L.O., Shedd, P.J., Morehead, J.W., and Corley, R.N. (2004). The legal & regulatory environment of business (13th ed.). [University of Phoenix Custom Edition e-text]. New York: The McGraw Hills Companies. Retrieved April 30, 2008, from University of
Phoenix, Resource, MBA560 – Enterprise Risk Course Web site.
University of Phoenix. (2008). Legal issues in reduction of workforce. [Computer Software]. Retrieved May 3, 2008, from the University of Phoenix, rEsource, Simulation, MBA560 Resource Optimization Web site.
Table 1
Candidates for Dismissal and Employment Law Concepts
