Question:
I work for an oil patch company. Profit is king to our senior management and chief executive officer, but we’re barely making it. I’m the human resources specialist, and I’ve had to lay off 15 employees. I’m new to HR, but am now in charge because they laid off my manager, the HR director.
Here’s the problem. A woman in accounting, who’s been here four years, has cancer. It’s not bad, but she’s had two surgeries. Because these surgeries wiped her out, she’s not been able to work the overtime hours her manager expects and that she used to work.
Her manager wants me to get rid of her, as does our CEO. I’ve explained to both that she’s protected under the Americans with Disabilities Act, and our CEO point blank told me to “figure something out that’s legal.” I’m worried that if I don’t figure out a way to lay her off, it might be my head on the chopping block.
Answer:
Unless overtime is a legitimate essential requirement of your employee’s job, if you “figure something out” that results in her layoff, you’ve created a pretext to cover illegal discrimination. Your employee can then sue you and your company, or get the assistance of the Alaska State Human Rights Commission or Anchorage Equal Rights Commission to educate your CEO and this employee’s manager.
If the employee sues your company, and you conspired with management to conjure up a phony reason for laying her off, she can list you as a defendant in her lawsuit. Are you prepared to be named as the HR specialist who let this happen? Even more importantly, can you live with yourself if you throw an employee grappling with a serious illness to the curb?
According to former employment attorney turned HR consultant Rick Birdsall, your employer appears to be asking you to breach your duties under Alaska’s Human Rights Law, which discusses discrimination based on disability and an employer’s failure to engage in an interactive discussion to accommodate an employee with a disability. Section 18.80.260 states that it’s “unlawful for a person to aid, abet, incite, compel, or coerce the doing of an act forbidden under this chapter.”
If what Birdsall says is correct, that “your leadership appears to have stepped over a line,” you don’t want to walk over that line with them.
As protection for you, Birdsall notes, “The law is designed to protect those who stand up for the civil rights of others. Section 18.80.220 (a)(4) states that it is unlawful for an employer “to discharge, expel, or otherwise discriminate against a person because the person has opposed any practices forbidden … (under the Human Rights Law).”
Here’s what’s legal for you to do — meet with this employee and discuss the level of accommodation she needs while she gets back up to speed. Depending on whether she’s hourly or exempt, you may be able to negotiate a reduced salary for part-time work, or a restorative leave. Birdsall also notes that if your company is large enough to qualify for Family Medical Leave Act — that is, if it employs 50 or more workers in a 75-mile radius — your employee would be entitled to a reduced work schedule.
Finally, to protect yourself and your company, Birdsall suggests you “explain to your managers the way in which their plans damage the bottom line and survival, as attorney fees, back pay and front pay add up.” You don’t need to mention that if you’re disciplined or terminated for not “getting rid of” this employee, you can sue.
© Dr. Lynne Curry is author of ”Beating the Workplace Bully” and ”Solutions” as well as owner of the management/HR consulting/training firm The Growth Company Inc. Follow her on Twitter @lynnecury10 or at www.bullywhisperer.com.
