On a sunny Tuesday afternoon last September, Perry Schibbel, a full-time maintenance scheduler at Acme Widget and Geegaw Manufacturing Co., returned to work after undergoing a medical checkup. He had been diagnosed as having a serious, but non-fatal, medical condition that required immediate attention. The normal course of treatment included surgery, a short hospital stay, but an at-home recovery period that could last as long as four months. On the other hand, his doctor also told him the good news. The long-term prognosis was that there would be neither a recurrence nor any lasting detrimental effects that would preclude Schibbel from resuming his normal range of activities.
On Wednesday, Perry's first act upon returning to the plant was to inform Stan Beyermann, the maintenance manager, that he'd need to take some time off. Beyermann was appropriately sympathetic and concerned. Because Acme had no labor union, Beyermann suggested Perry talk to someone in Acme's HR department to determine what procedures should be followed and what benefits, if any, were due him.
Before he went home that evening, Perry learned that, as a ten-year employee at Acme, he would receive two weeks of full vacation pay, two weeks of half pay and the balance of his leave would be unpaid. He would be eligible for long-term disability benefits after three months. Also, he learned that Acme would be bringing in a temporary contract worker to perform his maintenance scheduling duties for the duration of his medical leave.
During his absence, Perry kept in touch with Beyermann by phone and regularly conferred with Earl Kahn, the temporary worker, to answer questions and explain the Acme way of doing things.
When Perry returned to work on a snowy January morning, he was, as his doctor predicted, fit as a fiddle and, in fact, eager to get back into the fray. He went to Stan Beyermann's office to report for duty and was welcomed back warmly. But the good feelings soon turned as cold as the weather outside the building.
Beyermann explained that during the last four months, Earl Kahn had proven himself to be a capable team player, the sort of great employee every company hopes to find. Although Acme didn't have a place to use Kahn currently, it hired him anyway a week ago. Beyermann went on to explain that Perry would be sharing the scheduler's job with Earl, each working part-time until the economy picked up and Earl could be shifted into another area of the plant.
Can Acme really get away with "banking" Earl Kahn in expectation of more productive employment at a later date? If so, why? If not, why not? Can Acme cut Shibbel's hours to half-time just like that?
An academician's response
I can't believe this happens over and over again. I recently reviewed a case of a professional social worker that took an approved maternity leave from a social agency. They had a clear written policy guaranteeing her same job back when she returned. They even gave her a baby shower and told they were saving her job for her because she was so special. But when she came back, she found that they had given someone else her job, and instead offered her a job as a part-time receptionist at minimum wage. That's the only job opening they had, so they said. Is she suing? Does a bear sleep in the woods?
But Schibbel's case is a bit different. I didn't read anything that says he was guaranteed his job back by the company, or even guaranteed a job at all. Maybe there is a state law that covers it, but that's not my area of expertise.
However, my take on this is that good companies always take care of their people. Work is a social contract. I give the company my loyalty and commitment, and I assume the same in return. If the company breaks the social contract, then so may I. I can't work hard and commit to a place that I think will screw me at its first opportunity. I would be a fool to do otherwise. It is really naive (how about, dumb!) for companies to think that they can build a dedicated, loyal workforce who will go out of their way to further the best interests of the company, when the company, in turn, feels no obligations to the employees. They must be serving stupid pills in the executive lunchroom.
The successful companies, try Southwest Airlines or Whole Foods or Fannie Mae, commit to their employees. Their employees know that the company will take care of them and, in turn, they are going to take good care of the company. So, to answer the question of whether Acme can cut Schibbel's hours to half-time, I think they can. Should they do it? Probably not, if they want to build a highly committed workforce. Schibble has 10 years of experience and apparently knows his business, and even helped Kahn out (for free) while he was sick. So I would take care of him. Can Acme get away with "banking" Kahn? Why, not? Actually, not a bad idea if you think you found someone with great potential. But I would not do it at the expense of Schibble.
Professor Homer H. Johnson, Ph.D., Loyola University Chicago
A maintenance management consultant's response:
Perry Schibbel did everything right. He informed Acme of his medical condition and the restrictions he would be under per his doctor. He constantly kept in touch with Acme management as well as the temporary worker covering for him while he was out on medical leave. He reported back to work following his stay at home to recuperate per his doctor's direction and was one hundred percent fit for work.
Acme, on the other hand, was less than fair with Perry and has no right to cut his work hours just to accommodate the newly hired temporary worker until business picks up. If Acme wants to keep the new employee, then it should put him into a position elsewhere at reduced hours until work picks up, but it should not cut another employee's hours just to accommodate a new hire, unless that employee agrees to the reduced hours.
Perry should consider suing Acme if they don't restore him to full time work! What Acme is doing to him is wrong.
Bob Steibly, C.P.E., Steibly & Associates
A corporate consultant's response:
This case is absurd. Of course Acme shouldn't have done this! So what if Kahn is a great temporary employee? There were no complaints about Perry before he left. So why should Perry have to go to part-time to make room for a temporary worker?
Acme should simply have expressed their regard for Kahn, saying that as soon as business conditions improve, they would be interested in speaking with him.
If Kahn came to Acme from a temporary agency, Acme should have told the agency about their interest in hiring him permanently.
Francie Dalton, Dalton Alliances, Inc.
An attorney's response:
Assuming that Acme made no commitment to Perry to return him to work in his previous full-time position in any communication, such as a policy or employee handbook, Acme is perfectly entitled to retain Earl Kahn as a part-time employee and to return Perry to work as a part-time employee, despite his full-time status prior to his medical leave.
Employees of sufficiently large employers who have been employed a year or longer have a right to take unpaid leave for up to twelve weeks a year for various family and medical situations, including the employee's serious health condition which renders the employee unable to do his job. Hospitalization and recovery from surgery qualify under the Family and Medical Leave Act (FMLA) as a serious health condition. With very few exceptions, under the FMLA, an employer is obligated to return an employee to work in his or her previous position if the employee returns to work within the twelve week maximum leave period. Here, however, Perry was on leave for four months, so Acme no longer had an obligation to return him to his old full-time job under the FMLA.
One other law, the Americans With Disabilities Act (ADA), can obligate an employer to keep an employee's job open during a leave as a way of "accommodating" a disabled employee, even if the employee is not entitled to leave under the FMLA. The ADA, however, only applies to employees who are "disabled." While the legal definition of who is "disabled" continues to be litigated in the courts, it is clear under the ADA that an employee with a temporary condition, such as a broken bone, is not protected. Perry, with his need for surgery, which resulted in no recurrence or lasting detrimental effects, likely would not be protected as a disabled person under the ADA.
In summary, while Acme's action may seem harsh, since Perry was off work for a necessary medical procedure, a reason beyond his control, it was not illegal.
Julie Badel, Partner, Epstein Becker & Green, P.C.