Legal Issues in Reduction of Workforce Simulation - Report Example

Running Head: LEGAL ISSUES IN REDUCTION OF WORKFORCE SIMULATION Legal Issues in Reduction of Workforce Simulation Legal Issues in Reduction of Workforce Simulation A Table NAME OF EMPLOYEE EMPLOYMENT STATUS REASONS Carl Haimes For retention Above average performance and above median productivity Brian Carter For lay-off Redundancy, skills unusable in Fastserv as company is shifting out of the online business Sarah Boyd For lay-off Redundancy Nora Manson For lay-off Low productivity; Absenteeism Jenny Mills For retention Consistent and competent; College degree B Business Memo To: Bruce Wallace, Vice-President of the HR Department From: Manager of HR Date: Subject: Employee Termination The prevailing system of employment in the country under the present laws is employment-at–will (also known as termination-at-will) which implies that an employee can terminate his/her employment any time for any reason at all. Conversely, an employer can terminate the employee at any time for any reason. This is, at present, a very relevant subject considering that Fastserv is in the process of ending its online operations and seriously considering downsizing its employees in that operation as a consequence of that closure. Although employment-at-will is seemingly the current system of employment in the country, in reality however, this is not as unambiguous as it seems. Through the years, the government and the courts have provided several exceptions which presently serve as constraints to the general rule. Three of these exceptions are: employees who are covered by CBAs; provisions of the tort and contract laws and public policy principles, and; beneficiaries of defined benefit pension plan (Davenport et al 2000). If a company’s employees are unionized and the CBA which bound both parties specifically made provisions with respect to the termination, manner of termination and causes of termination by the employer, then the latter is bound to that agreement. Although an employer can nevertheless terminate an employee under such CBA, it cannot do so without giving just cause for such dismissal (Davenport et al 2000). Since Fastserv is not presently unionized, this is not presently our concern. On the other hand, the courts have established in the past that the existence of a contract of employment can present a limitation on the right and power of an employer to dismiss an employee. Such a contract need not be explicit and written. A dismissal conducted by an employer against an employee whose job is under an existing employment contract may render the former liable for breach of contract if the dismissal was not made for a good cause. The employment-under-contract case was illustrated in Foley v Interactive Data Corp, (1988) 47 Cal. 3d 654, where the court held that the dismissed employee was working under an implied contract when the employer assured him at the time he was hired that his job in the company is secured so long as he performs his functions adequately. In many of the dismissal cases, the courts have ruled that the ‘employee handbook rule’ can be a source of an implied contract where such handbooks make promises to its employees with regards to job security in the company. Four of the present candidates for dismissal are deemed under contract with Fastserv and this is a problematic area under the present course being undertaken by the organization. Moreover, employers can be liable for discriminatory dismissals when such dismissals were made on the basis of race, age, sex, disability or religion. In addition, employers are barred from terminating employees on the ground that such employee refused to obey an unlawful or illegal order. Employers are likewise barred from dismissing an employee to frustrate or hinder that employee from exercising a right or entitling himself or herself under a benefit pension plan (Davenport et al 2000). All of the employees under consideration for dismissal are, in fact, covered by various discriminatory laws which make their dismissal from the company complicated for the reason that their termination might seemingly place it within the ambit of any of these laws. It is fundamental likewise that in implementing such downsizing, the organization’s decision must be clearly and unequivocally underpinned by the interest of the organization as a whole rather than on purely self-interest. This is important to inspire loyalty and confidence in the organization by its employees and prevent demoralization in the ranks. The feeling that the company conducts dismissal only for a good reason and on fair and justified grounds must be recognized by the average employee. This is significant because under the principles of agency, employees perform tasks for the employer and for the former to do this well they must have confidence and loyalty in the latter. This is the reason why the task of choosing which of the five employees recommended for dismissal was given great consideration and thought. All the three employees who were finally selected for dismissal were so chosen for perfectly justified reasons especially so because these persons are ‘protected persons’ under the law. Nora Manson, being an African-American, may contest her dismissal on racial grounds under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment against persons on the basis of race, sex and gender and religion or on the basis of her activism. However, her employment record substantiate that her dismissal is not based on color, sex or activism but on comparatively poor productivity and absenteeism. Among the five candidates for dismissal, she had the lowest productivity as well as the highest absences from work. Her overall high track record performance and one special achievement with Fastserv were offset by her poor productivity and absenteeism. Although the company appreciates her talent in communication skills, such skills would not be of use with her constant absence from work. With much regret, the HR has also decided to terminate Sarah Boyd who has been with the company for so long and whose loyalty to it has been tested. With the imminent automation of the dispatch system, her skills would become redundant and useless to the company. What must be emphasized here is that Ms. Boyd is not being terminated on the ground of her age, which is precisely prohibited by the Older Workers Benefit Protection Act and the Age Discrimination in Employment Act of 1967 (Steingold & Schroeder 2007), but on the impending redundancy of her position. However, we suggest that Ms. Boyd be offered an early retirement scheme in accordance with the ADEA provisions as well as redundancy pay. Brian Carter, whose skills and talent breathed life into the online department of Fastserv, has to be terminated likewise on the ground that his talents will be redundant once the online section of Fastserv totally goes out of operation. Fastserv is basically a sales organization and therefore do not really need the expertise that Carter can offer in the area of web development and internet operations. The carpal tunnel syndrome which he presently suffers has nothing to do at all with his termination. Carl Haimes and Jenny Mills are being retained for justified and significant reasons. Haimes’ performance and productivity record are the highest among the five candidates and his expertise as a system analyst will still find purpose and use in the present company structure even in the closing out of the online section. On the other hand, Ms. Mills’ background in Public Relations is valuable in an organization such as Fastserv and her track record with the company shows that she is both consistent and competent and presents no persuasive reason why she should be terminated from the company. References Davenport, Geoff & Malcolm Crotty, Patricia Torres, International Labour Office, Anne Trebilcock, María Luz Vega Ruiz, Rose-Marie Belle Antoine. (2000). Termination of Employment Digest, Ed: illus. (356-358) International Labour Organization. Steingold, Fred & Alayna Schroeder. (2007). The Employers Legal Handbook, Ed: 8, rev., (166) Nolo. Title VII of the Civil Rights Act of 1964 Read More