Not hiring based on job description

[Wednezday]

What is the name of your state? Washington State ("at will" employment)

My company has been using various techniques to downsize for the last few years. One of the most common techniques that they employ is to eliminate two jobs and create a new job combining the tasks of the eliminated position. The two employees with the eliminated jobs then must both apply for the new position if they wish to remain employed by the company. The "loser" is then let go.

I have a friend ("Sarah') who has worked in the company for over 25 years. She is 2 years from retirement. She performs regulatory compliance oversight for the company's various properties. A couple of months ago, the company posted a position combining her job tasks with those of a company clerk (mail delivery, switchboard operator, purchasing company supplies). This unusual because most times, the jobs that were combined were similar, but these two jobs were completely different in tasks and requirements. Most people believed that this was the company's way to force Sarah to do her job as well as some clerical activities.

After nearly 2 months of "reviewing" Sarah's and the clerk's applicaitons, the company decided to eliminate Sarah and keep the clerk. They told Sarah that they were "taking the job in a new direction", which is a bunch of cr*p because the job requires follwing a federally mandated schedule and a technical background (i.e. knowledge of specific equipment parts and operation).

As much as I personally like the clerk, she has absolutely no experience in the technical reqirements of the job. The day after she was given the job, she went around the company telling everyone that she needed help; she had no idea where to even find the regulations she was suppposed to make sure that the company complies with. Her manager said that if she can't handle the work, it will be outsourced.

So, my question is: is it legal to ask a person to apply for a specifically described job and then tell them that they can't have the job they were asked to apply for because the company is "going in another direction", thereby making it impossible for her to direct her re-application properly?

This situation really has stink written all over it. Sarah is 60 years old; the person taking her job is much younger. Sarah was the only person in the company with the requirements to do the job and they replaced her with a clerk who knows absolutely nothing about it. They told Sarah what the job description was, she applied, and then they gave it to someone with no experience and offered to outsource it for her.

I live in an at-will state. Wouldn't it have been easier for the company to just lay off Sarah since they obviously wanted to get rid of her? (She gets a severance package either way).

Following the announcement, Sarah went to her desk and cried. She then missed two days of work due to stress. She came back yesterday and cried again - the company sent her home and told her not to come back.

-Wed.

 

[hexeliebe]

Regardless of how this sounds, there is nothing wrong with a company being stupid.

The best thing Sarah can do is to begin looking for another job. And when asked why she left the other company, she is well within her rights to announce "They replaced me with a clerk with no technical training to oversee government compliance".

 

[JETX]

"So, my question is: is it legal to ask a person to apply for a specifically described job and then tell them that they can't have the job they were asked to apply for because the company is "going in another direction", thereby making it impossible for her to direct her re-application properly?"
*** In itself, what you describe is an indicator of poor management, but is not 'illegal'.

However, there may be some issues as to possible pension standing and termination (ERISA). I will leave that to my esteemed (and more than qualified) colleagues, Beth3 and cbg to answer.

 

[cbg]

Nothing that the company did is illegal in and of itself. However, based on the facts you present, my suspicion (which of course I cannot prove) is that this was a pretext and Sarah's termination was actually age discrimination. There MAY be a legitimate business reason for the way the company handled it. I cannot say, on the basis of your post, that age discrimination has definitely occurred. But if I were Sarah, I would contact the EEOC and run the facts by them.

 

[Wednezday]

Thanks for the quick reply. It just seems to unfair that they told her to apply for a job and then said she couldn't have it because they wanted something entirely outside the job description.

If the company is only guilty of "stupidity", I guess there's nothing Sarah can do.

Still, is there any possible reason that they made have made her go through this whole song and dance rather than just lay her off in the first place?

 

[hexeliebe]

Yes, it's called "C.Y.O.A."

 

[cbg]

It is POSSIBLE that when they combined the two jobs they honestly had not made up their minds which way to go, and at the time they invited Sarah to apply for the job they honestly thought that she might end up being the one to retain the job. If that is the case, then there is no discrimination and nothing she can do.

Simply laying her off and giving her job duties to the other employee would actually, in my opinion, be MORE likely to invite a complaint of age discrimination. At least by inviting her to apply they gave the appearance (and may even have honestly done so, I have to grant) of giving her a fair shot at the position.

While I still believe there is a reasonable case for age discrimination to be made here, I also have to grant that if both Sarah and the other employee were invited to apply for the position, obviously one of them was not going to get it, and percentagewise it was just as likely to be Sarah as the other employee.

 

[Beth3]

"Still, is there any possible reason that they made have made her go through this whole song and dance rather than just lay her off in the first place?"

Possible answers:

1. To make those making the decisions feel like they were being fair.
2. In an attempt to cover up age discrimination.
3. Because they're idiots and can't think their way out of a paperbag.
4. Because they don't understand the actual requirements of Sarah's job and the hot water they may land in for putting someone in the job who doesn't have a clue how to do it.

Take your pick.

I don't know why they did this. From what you relate, it appears to make no sense, particularly because of the regulatory compliance issues. Possible age discrimination occured to me too when I read your original post but since we don't know management's motivation, we can't say whether it is or isn't.

I would suggest Sarah talk to an employment law attorney and/or contact the EEOC.

 

[Wednezday]

Thanks again everyone.

I suspected possible age discrimination myself -- especially because my company has been getting rid of a suspiciously large number of older (and, thus, higher salaried) employees over the past couple of years. Last week alone, they let go four other people who are near retirement age with the same re-application process - only these people were allowed to apply under accurate job descriptions.

You all raise some very interesting possibilities to consider regarding why the company could be using this process.