Looking for Input

Balloonman

[font size="1" color="#FF0000"]LAST EDITED ON 04-01-04 AT 11:35AM (CST)[/font][br][br]I am looking for input. I have an employee who is ...........a little slow. Has been with us since '98 as a laborer. He will be 44 this year.
His performance has been dropping off the last few years and we are now to the point none of the job site superintendent's want him on their jobs. His work speed has dropped, he is also limited in what he can do work wise as opposed to the other workers. He is also limited with where he can work as he is not "comfortable" driving to far. My understanding is his mom helps him with making sure he knows how to get to the job initially. At least this is what I have been told. If I interviewed him now I would not even consider hiring him.
He has been found a few times with tools that are company tools, that if it would have been reported to me at the time, I would have terminated for theft. But I was informed of this after the fact.
He no longer is an acceptable employee. There is no discipline or documentation of that. He was given a decent increase last year, but still by far the lowest paid employee we have. Also our work has become more complex, and this is one of the reasons he no longer performs near an acceptable level. He has been off work for 6+ weeks due to lack of work, but we are getting busy now and no one wants him on their jobs.

What hazards do you see in letting him go?
My $0.02 worth!
DJ The Balloonman

Parabeagle

[font size="1" color="#FF0000"]LAST EDITED ON 04-01-04 AT 12:00PM (CST)[/font][br][br]Time to get your wagons in a circle, DJ. You cite that his performance has been dropping off over a period of a few years and now it's time to talk to witnesses and document specifically the areas in which the decline has occurred. Also make sure that no one's judgment regarding his performance is colored by his apparent "slowness," or else I think your reason for termination would be perceived as pretextual. The lack of any performance deficiencies on file or documentation of disciplinary actions for unacceptable performance are, as I see it, your biggest problem if you terminate him and he files a claim. Even if your reasons are strictly performance related, I think you might still have a fight on your hands after termination.

I think the best thing to hang your hat on in this case is the change in the work process. If technology (or whatever) has made the job more complex and he can no longer perform (or cannot be trained in) the essential functions required, it's time to part company.

Another thing you may want to consider is getting in touch with the HR folks at Goodwill Industries or similar employers of developmentally disabled individuals. At least here in Oregon, they always seem to be looking for disadvantaged people to train and staff their stores. This is a very sad set of circumstances and I feel for both you and the employee.

Good luck.

Gillian3

The hazards are age discrimination, especially if you hire a replacement who is less than 40. The same is true of other types of discrimination depending on race, disability, etc. etc. of the individual. The lack of documentation doesn't help you if there is a challenge but you already know that. The length of service isn't particularly long so there isn't much added risk attached to that. From your discription I would worry a bit about disability and whether or not you have an ADA issue, but then again, you weren't aware of that, unless you have a superintendent who hasn't leveled with you. You just need to evaluate the risk and the cost. You know the risks. What are the costs of bringing him back and putting him on some sort of performance monitoring plan? Then do what is best for the company.

Carey

I'd say you're in a pickle. I have been in many pickles myself. Without documentation of his performance issues and without him having been given sufficient warning and opportunity to improve, I wouldn't recommend terminating him. If this were happening at my company, we would have to bring him back on some project and work very closely with the manager to actually manage him. We have managers put employees on leaves of absence (due to lack of work) and then start hiring externally when things pick up. We have to get involved and sometimes force them to bring somebody off LOA because they never documented any performance issues. Sometimes there can be valid reasons (skills, experience, qualifications), but usually it's because they just don't want the person back and hope they'll just go away and find another job. It puts the company at risk if the employee is in any protected category (and of course we're in CA).

Is there any other position at the company he could perform within his limitations? We have a person who sounds very similar to your employee who is a day porter in our offices. He is slower than anybody else, but he gets the job done (eventually) and there's not a big impact to anyone.

Don D

Your post suggests he's currently in his 6th week of layoff due to lack of work. That tells me he should have 20 weeks of unemployment insurance left. Not knowing what your recall policy is, I would suggest you simply let him continue to enjoy his UI check and if he eventually calls you, tell him 'At this point, we're not going to be able to call you back.'

Although it's an admirable thought, I think it might be rather treacherous for you to negotiate the 'learning or developmentally disabled' pathway without a request from his family that you do so. Once you do that, he is ADA protected since you obviously, at that point, "regard" him as disabled.

deniseE

Odds are...his family knows the situation he's in...especially, if the company has been good to him (other ee's not mean or taking advantage). My brother and sister-in-law are both in a similar situation...and we will someday have to face the reality that they can no longer work.

The good news is that they will be eligible for SSD, as they are now, but they choose to work instead. Maybe your guy will fall into that category too...and as suggested before, there are other community level options, like GoodWill.

I imagine that the job could become a safety hazzard for this guy too. If he's not understanding the newer concepts of the job he's placing himself and other workers in danger.

Your best option may be to just not bring him back...if he files for UC...let him have it and wish him well.

Balloonman

He lives with mom, and I have not seen anything from the unemployment office showing that he has filed, even though we gave the info to all employees.
His mom looks after him, and she will not allow the above situation...........just informing him that we cannot bring you back to happen without discussion.
My $0.02 worth!
DJ The Balloonman

jennifer jo

Living in MT, we have to comply with the Wrongful Discharge Act, so I would go along with Carey's suggestion. With close supervision, you should be able to obtain the documentation you need to support a termination decision.

Don D

While you're considering what you'll do, why not pick up the phone and call his mother. Tell her you've noticed he has not filed yet for UI and encourage her to do so. Tell her that while he's laid off, they are missing a weekly benefit amount with a max of (X). He won't get the pay retroactively, but the 'missed' weeks will tack on to the other end of his layoff. Next subject: Am I to understand that his mother will intimidate you into discussing his employment status or file with her?

Balloonman

No Don she will not intimidate me. But she will be his advocate.
My $0.02 worth!
DJ The Balloonman

Cinderella

Lots of good advice from formites so far. I have never been in this situation, and I wouldn't want to be...so I feel for you but have no advice to give.

However, I also feel for the employee...this kind of thing chokes me up actually. I just want everybody to do their best and make enough to live on at a company that's good to them - whether they're developmentally disabled or not. I know that's not reality, and you have to make a good business decision here, and I have every confidence that you will. You have to do what you have to do, but I know I would have a really hard time emotionally with this.

Crout

Was he placed there as part of a vocational program of some sort? Lay aside the "slowness" for a second and think about how you would treat any other employee in the same boat....no documentation, but you just can't escape the fact that he can't do the job. Would you suck it up and bring him back because of the documentation issue, or just keep him laid off? Now think about the "slowness," which brings me back to my first question. If he was placed there by an agency specializing in vocational services for developmentally disabled individuals, a good argument could be made that this will become an ADA issue. However, if he just sort of walked in off the street and applied like any other person you are probably much more free to act as you see fit. I would do as Don suggests and resist the urge to offer any kind of aid outside of what you would normally do for other employees.

Balloonman

Thanks for all the input. Was looking for some thoughts/ideas/other perspectives to help me with the conversation I wanted to have with our general manager before sitting down with the person whose job he will be on.
I don't feel that he should be terminate, due to lack of documentation. If there was legit documentation I terminate no guilt no hesitation.
I am going to have the discussion with those in charge of the project, that if there are performance standards that all are held to that he is not achieving, we will document, coach and counsel............if legit, and if he truely cannot perform the work we need, then I will terminate.
However I believe he still can be an asset, he just will have some limitations, which may mean he has to sit at home from time to time, but will still be employed.
My $0.02 worth!
DJ The Balloonman

Molly04

Having been in the vocational field for many years, I would also suggest counseling the supervisors. We often found that supervisors were uncomfortable telling someone who is "a little slow" that they weren't doing a good job. If there is no documentation, is it possible that this gentleman is not even aware that he is not meeting standards?

Crout

Excellent point.