Termination/Re-hire

atainc

We are a staffing agency and have an individual who was terminated based upon his being hired permanent by our client company. He was required to take a physical and during this process it was discovered that he had carpel tunnel and would not be able to perform the duties required of him. Client company informed individual that he would not be hired permanent based on the information from the physical examination, however his supervisors told him to keep coming to work under the assumption he was was still employed by us. Individual called me yesterday to inform me of all this and to say he had worked Mon - Tues for client company. I informed him to stop working for client company due to the fact that he was no longer an employee of ours and would not be paid for working after his termination date which was last week. Client company would like for individual to keep working, but wants him to work through our agency. I see worker's comp claim written all over this if we hire individual back. I understand that he could still file the claim, but what obligation do we have to this individual as far as hiring him back. My thoughts are that since client company will not hire him permanently because of the carprel tunnel, we are under no obligation to hire him based on this information. Am I on track or is there a violation of the ADA in the making? What is our obligation to this individual. Your answers will be greatly appreciated.

marc

You omitted some detail, but I am not sure it matters.

The detail has to do with the method of termination. Was it a written resignation, did the client company just tell you they were hiring him, how did all of that go down?

This poor guy is in the middle - it is ok for him to do the work as long as it is with you, but he cannot do the exact same work if it is for the client?

I think you are on safe ground with respect to the termination, assuming you are not in a state that is not at will (is it really only one state?).

But you will still be stuck with all that WC mess around the carpal tunnel.

So, do a little investigation about his condition. Will continued work aggravate the situation and force him into one of the more costly treatments or can he get away with the brace. Will the client company continue using him if he is placed on light duty because of the WC?

What I am getting to is this: If the CT is manageable, why not continue to employ the guy and help offset the costs associated with the WC claim? It has already happened so you are stuck with those costs at some level - why not try to recoup? Of course that only works if those questions can be answered in a way that don't lead to increased costs and decreased revenue.

atainc

Marc,

Thanks for the info. The termination was done by phone after the client company company informed us that they were going to hire the individual and gave us a hire date. Individual also called and gave us a start date with client company. We are in an at will state so the termination should stick. Unfortunately, the individual is caught in the middle and I would be reluctant to hire him back based on the medical info from our client company. I will give your suggestion some consideration because the individual is an excellent worker. Makes me want to hire him back at a higher mark-up and let the client company help defray the WC cost............but that is another chapter. Again, thanks for the info.

LivindonSouth

'Manageable' carpal tunnel? We have spent thousands upon thousands of comp dollars on this condition in recent years. I've not yet heard a physician recommend "Let's manage it". I would recommend that the temp agency NOT put this guy back on their payroll in a job where a physician has already ruled him unfit to perform. Talk about a bomb waiting to explode.

The only way I would entertain a different assignment through the agency is if it in no way requires repetitive wrist motion, production jobs, driving, assembling or similar activities.




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

marc

We have had a couple of cases where the WC docs tried several physical therapy type exercises, along with a canvas/plastic wrist brace that provided support with limited flexibility.

It worked in one, but not in the other.

Gillian3

What is your motive for termination? If the motive is that he can't do the work that the client needs to have done, I think you are safe. If the motive is - terminate because he is a workers compensation risk now and in the future, you may have violated regulations that do not allow hire/fire decisions to be based upon worker comp. history or speculation. I think you would lose a hearing pertaining to the pay issue. If he worked he should get paid. If your answer to that is that the client told him to work, not you, I think that you would get tied up in the joint employer relationship that you have with your clients.

marc

Is you first name really Sinclair as it says in your profile?

Anyway, you make a couple of good points. The guy worked, the client wants you to make him whole and continue his employ - those wishes should be considered in the decision equation.

Gillian3

Yes

LivindonSouth

Marc; do you by chance remember the Andy Griffin episode with the Englishman named Malcolm who rode into town on an English bicycle and tended to imbibe a bit too much? He was a butler of sorts and Andy and Aunt Bea tried their best to put him to work at the house. That episode starred Sinclair Hugh, aka Gillian3. It goes without saying that G3 did not celebrate the 4th of July. x:-)




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

Gillian3

Actually, he did. Our community has an annual barbeque. We went. It was our second. Also, the transit district had a potluck. I went. I wore red, white and blue just like the instructions said. I don't have anything red, white and blue, so I wore a white and blue shirt with a red paperclip on each lapel.

marc

Sorry for the delayed response, just got back in town.

My son is relocating to So. Cal to start Physicians Assistant school. I was helping he and his girlfriend find an apt. Successful trip - next week we load the Uhaul and drive down again.

But to answer your question, I do not remember the episode - but I can envision Sinclair in the get-up.