Recruit for Postion prior to termination
Sandy
20 Posts
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!
Comments
I see Don is working from home - don't you get enough of this during the day?
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
Steve; will you please hand each person in the jury box a Kleenex while the plaintiff's attorney composes himself?
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
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