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And not only that. The reality is that suing your former employer is playing Russian Roulette with your career future. The example someone mentioned about the 67 year old, that person is not going to find another job at his age, so he really has nothing to lose by suing. But someone in their 40's or 50's who needs to find another job, suing is a bad idea. No matter how it goes, whether it goes to trial, whether it is dismissed, whether it settles early, there will always be a public record of that. Years later, a prospective employer can do a background check on that person and find he or she sued a former employer. That person may as well wear a placard that says "DO NOT HIRE ME. I AM A TROUBLE MAKER.
That's not how background checks work. Many lawsuits are not frivolous, and in fact, are the only way to officially collect for damages or rectify a wrongdoing by the employer. Most bonafide organizations have very strict guidelines about what they can share with other companies, and most of that is limited to 1) dates worked, and 2) position(s) held. The reason they do this is to have the appropriate controls in place in order for consistent information being disseminated that doesn't open them up to liability. On the rare occasion I've heard about this pettiness arising, it usually involves mom and pop shops who have no official HR system in place.
Being scared to take an appropriate and justified action is exactly how they want you to feel.
I worked for another employer for a few years. I remember there was an employee, an African American woman, who they let go after she was with the company 6 years. She was not very good at her job, and a lot of co workers had issues with her. They said she was nasty and abusive. They had counseled her many times and had even moved her a couple of times. She had a few different roles in her 6 years and was not very good at any of those roles. There were a couple of other employees who were let go for performance reasons. One was a Caucasian woman in her 20's whose performance was not up to par as well as attendance issues. She was only there about 8 months and was let go. No big deal. Another was a Caucasian male in his 30's. He was let go after 10 months for performance reasons. No big deal. But that woman was there 6 years in total. I think we know full well why. They had to really have their ducks in a row with her before letting her go. They had to show a long paper trail showing poor performance and write ups as well as issues with co workers. They had to show that they actually tried to help her succeed by moving her to a different role a couple of times in hopes that that would work out better.
That's bending over backwards to avoid a lawsuit or a civil rights fine of some sort. I wonder if she sued them anyway.
You can it anonymously on job searching boards like Indeed or Glassdoor. But then I wonder how a company would enforce any agreement if they don't know who wrote what (I would think only small companies would really be able to figure that out).
The good that comes from it is for those who might consider working for the company. For example, here is the review page for HEB (I picked a company that was well rated by employees): https://www.indeed.com/cmp/Heb/reviews
Looking at their reviews, one is written by a current employee who is a meat cutter. That could be anyone at any store. Same with the cashier review that follows.
Anonymous, online reviews can't be trusted. For all you know, they were written by the competition, or by random crazy people who just post junk all over the place. It's very common.
The only real way to evaluate an employer is to actually work there. Second best is to talk to one or more current or former employees.
I was thinking of applying to a company in my area that is advertising openings in my field. I happen to have a friend working there, which in normal circumstances is a tremendous advantage.
But when I asked him what he thought of the place, he was distinctly unenthusiastic, and among other things described how the hiring managers are forced to interview minorities for every opening, regardless of qualifications. It's a quota thing. I gave up on applying.
I still don't really know if he was deliberately trying to discourage me as an under-qualified candidate, or if he sincerely thought I'd be unhappy there due to the political regime.
But it's still a better gauge than just reading anonymous junk from a website.
By the way, Indeed and Glassdoor have to be careful what they publish, to avoid lawsuits. Even a frivolous suit can cost them a lot of money.
That's not how background checks work. Many lawsuits are not frivolous, and in fact, are the only way to officially collect for damages or rectify a wrongdoing by the employer. Most bonafide organizations have very strict guidelines about what they can share with other companies, and most of that is limited to 1) dates worked, and 2) position(s) held. The reason they do this is to have the appropriate controls in place in order for consistent information being disseminated that doesn't open them up to liability. On the rare occasion I've heard about this pettiness arising, it usually involves mom and pop shops who have no official HR system in place.
Being scared to take an appropriate and justified action is exactly how they want you to feel.
OK. Maybe not a background check. Maybe just a Google search of that person.
CA: Can you please provide data and documentation outlining the amount of time every associate spent shopping online? (they probably can't. technically it may be possible, but depending on the size of the company, it may be time consumingly prohibitive).
CA: Also, please provide documentation of your policy regarding personal internet use. (I can almost guarantee you there isn't one or it just says it's "discouraged.")
I guarantee you that if they actually did get the data regarding how many employees visited shopping websites (which is almost impossible to do), they will find that there's a whole lot more than just Ms X. If they didn't fire any of them, then that's a problem. Also, it's damn near impossible to determine why someone visited a site. Did they go to American Airlines' site to book their personal vacation or to prepare a travel budget estimate for business? Were they buying employee gifts or researching potential employee reward ideas? Someone would have to parse through months of internet data for every employee to get that info. That is time and cost prohibitive.
If the employer was on top of it, they would have documented it from day one and let her go. That would be a hard case for her to prove.
Most of the plaintiff attorneys are not very competent and are just trying to get a quick settlement with as little effort as possible. They probably wouldn't even know what to ask for with respect to the internet usage data. The company attorney would have data for a sample of other employees, but producing the entire dataset wouldn't happen.
My employer will spend a lot of money to make a point, and doesn't care that it would be cheaper to pay the settlement.
Most of the plaintiff attorneys are not very competent and are just trying to get a quick settlement with as little effort as possible. They probably wouldn't even know what to ask for with respect to the internet usage data. The company attorney would have data for a sample of other employees, but producing the entire dataset wouldn't happen.
My employer will spend a lot of money to make a point, and doesn't care that it would be cheaper to pay the settlement.
Your employer seems like the exception. Not the rule. I think most employers would go to the plaintiff and say, "OK jerk. You really have no case against us, but we are going to write you a check for $10,000. Go away and leave us alone." I'm pretty sure that's what my employer would do.
You can't say that you are firing them for their religion, but you can give no reason at all for their firing.
A former colleague of mine was just fired at 67 a couple months ago.
While a company does not have to state why, the EEOC will examine any layoff and in particular examine the demographics of the effected workers. If there is a disproportionate impact on any protected class, there has to be a lot of explaining to do - and the EEOC is not shy about initiating litigation.
Protected classes of employees include women, BIPOC, LGBTQ+, veterans, and everyone over the age of 40.
Non-protected employees: cis white males under the age of 40.
During the run-up to the layoff, the employer's HR legal department scours each person who is slated to be laid off.
On more than one occasion, HR legal will instruct a department that they must de-select individuals targeted to be laid off, as there are too many women, BIPIC, LGBTQ+, veterans, and over-the-age-of-40 people being targeted relative to the population of the company as a whole and relative to the population of the surrounding communities. Why? Risk of litigation from employees or the EEOC.
In that case, management swaps out the protected class person and swaps in a non-protected person (e.g., a straight white male).
Sometimes the company goes ahead with the layoff regardless. For example, an entire division might be closed, and the employees of that division might have a disproportionate population of protected-class individuals - but the economics are such that the entire division is shuttered, period. Litigation may ensue, but the likelihood of the company prevailing is high.
In the case of a 67 year old a few months away from retirement being fired, there must be more to the story, as that is a lawsuit looking for the spot marked X. There is almost assuredly a well documented paper trail of progressive disciplinary actions, a single egregious incident for a senior manager, lack of confidence for an executive, or the like.
Or, perhaps the company is just stupid and deserves an EEOC inquiry/litigation.
Quote:
Originally Posted by Serious Conversation
He had been there almost seven years.
One thing his former employer has going for it is that they hired your former colleague when he was age 60 and already a member of a protected class. That is evidence the company does not discriminate on the basis of age. A strike against the company is they have not coached the employee - he had no idea it was coming.
I hired someone who was age 60. I had to fire her 2 years later. She couldn't do the job. She had been given ample coaching. She was relieved when I fired her, saying she had expected it as the job was over her head. It was a bad hire on my part.
Quote:
Originally Posted by Serious Conversation
According to him, he had no idea why he was fired.
While possible, it is also possible he is lying to you in order to save face.
If he truly had no idea why he was fired, that's really bad management. There should never be any surprise regarding termination, lack-of-pay-raise, performance evaluation, etc. If there is a surprise, the manager wasn't doing his/her job.
Last edited by moguldreamer; 04-05-2023 at 10:19 AM..
Exactly. Just ask any HR manager, and they will tell you that employment at will does not exist in practice anyway. You know how it goes. Let's say there is an employee that is not cutting it. Let's call him John. John just happens to be a minority or happens to be over 60. So John's supervisor goes to HR and says, "I want to fire John." The HR manager knows that if the fire John, he can really make their life miserable. Even if the reason for the termination was no more than, "His performance wasn't up to par," in reality, all it takes is for John to convince a lawyer that he was treated differently from another employee who was not a minority or over 60, and the company is on the hook for a lot of money. Not because they are guilty of wrongful termination, but because the company will have to spend valuable resources just responding to a lawsuit. Any HR manager will tell you that that is a major PITA to deal with. And it can also bring bad publicity to the company. This would all go without saying to an HR manager.
So the HR manager will say, "It's just not worth the trouble." So they see if there is another job John can do at the company, or they just have John perform menial tasks and wait. They wait until there is a recession or the company is not doing well and they have to lay a bunch of people off. That way they can let John go and call it a layoff and if challenged, they can say, "John was one of a dozen people we had to lay off. The company was not doing well and we had to cut back." Or they wait until there is another employee who is also not performing up to par, an employee who is Caucasian and in his 30's. let's call him Bill. Then they let John and Bill go at the same time, probably the same day, so John cannot allege discrimination.
It goes far beyond what you describe.
To fire a non-performing white male under the age of 40 - that is, someone who is not a member of a protected class - it also takes 6+ months of documentation, coaching, written performance improvement plan, etc. It is so much easier to just let the employee transfer elsewhere rather than go through the effort to fire them.
What is more common is that John starts getting written up for poor performance, which creates a written record and provides specific examples of that poor performance.
I've followed the procedure a couple of times. As a manager, it was quite a bit of work, with useless HR people giving ME a Propofol-free colonoscopy that instead I would give headhunters the name of the employee I wanted to get rid of. It usually worked.
Yes, they are still afraid of lawsuits, which is why they cover all of their bases by documenting the heck out of everything. Lawyers aren't going to take a case that they know they can't win or waste their time with a case that will only net them a few thousand dollars.
In the case you mentioned, it's possible they were worried about an ADA lawsuit. And I will agree that those are tough. But even by your own admission, she did what she was required to do and did it well. That is the issue. It's hard to defend firing someone in that situation. The conversation would go something like:
"So she satisfied all the requirements of her position?"
"Yes."
"And she performed her job well?"
"Yes."
"So why did you fire her?"
"She was spending time shopping on the internet at work."
"Does any other employee ever shop on the internet during work hours?" (newsflash, just about everyone has done it at some point)
- Now the company has to explain why other people do the same thing, yet she was the only one fired. See where this is going? That's why she would have a case.
And frankly, if someone is getting their job done, and done well, then who cares if they shop on the internet after completing their work? And if she has that much time on her hands, then that's on management for not allocating work more effectively.
Regarding shopping on the internet, most companies have a "Fair Use Policy" regarding company resources of the internet, telephones, office photocopiers and the like. As long as you do your job and your use of the internet during office hours is modest, you're OK. Most companies also have software that finds ways to measure your use of the internet for shopping. So in the above hypothetical interchange, it would go:
"So she satisfied all the requirements of her position?"
"Yes."
"And she performed her job well?"
"Yes."
"So why did you fire her?"
"She was warned 3 separate times she was in violation of the Fair Use Policy because during 3 separate weeks she averaged 24.5 hours per week on the following websites: eBay, Amazon, Macy's, Chico's, Dillard's, Target, Walmart, Costco, Carnival Cruise Lines, United Airlines, Home Depot, Lowes, Uber, Chase, City-Data, Twitter, Pinterest, Facebook, and My Space."
I recall at my former employer, an IT director went to a VP of Finance to tell her she had contractors onsite who were spending all their time on eBay, told the VP of Finance to terminate those contractors for violation of fair use policy.
The VP of finance examined it, and told the IT director, "Those contractors are not really contractors per se. They are not on our payroll. They have contractor badges to get in the building and have unrestricted use of everything because they are IRS Agents who audit the company's tax returns. We don't manage them, and we can't touch them."
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