Acme has two good employees, but can't keep both

Life's not easy when you lack good options

 

 

In this tightening economy, Acme hasn't had to downsize its engineering and maintenance departments. It was a near miracle that attrition from retirements and people leaving voluntarily trimmed the ranks at just the right pace in the downward spiral. Acme also discovered an aging workforce can be a mixed blessing.

When the technical departments became too thinly staffed to function adequately, Mahogany Row responded with new marching orders. A much-ballyhooed dictate announced the company would, among other things, outsource its maintenance function to an out-of-town contractor, a start-up called GoodWerx, which was, curiously enough, owned and operated by the nephew of Acme's president.

Now, about a year later, Acme has concluded its sales still haven't rebounded to anything like they were in the good old days. In fact, one product line is failing so miserably that another of the now endless string of desperate dictates ordered mothballing the entire section of the plant where that product is made.

The move means contract maintenance staffing must be adjusted. Jerry Atrique, Acme's titular head of the maintenance department, was asked for his opinion about which of two GoodWerx employees he would terminate. GoodWerx wants to send one to a plant where the contract is far more lucrative than here with Acme.

The first is Barb Barricoste, a whiz with all things digital and analog. It's almost as if she can see the electrons and packets flowing through wires, so uncanny is her ability to troubleshoot and bring errant signals back into obedience. Her skill set also presents a difficulty for Jerry. True, when things go bad, she can make them right again in record time. On the other hand, such rapid work gives Barb lots of free time to suggest improvement projects above and beyond simply maintaining what exists.

The contract stipulates that when GoodWerx performs work that's outside the scope of the original contract, it's to be compensated on a time and material basis, an option that's by no means as economical as the contract's standard billing scheme. Barb has gotten so many of her out-of-contract projects approved that Jerry has started thinking of her as a pirate. Every time she shows up in his office, Jerry feels like he's going to have to walk the plank again while his dwindling maintenance budget only adds bullet points to Barb's digital resume.

The second candidate, a machinist named Willie Yerwontey, is a whiz with all things mechanical. He is a trouble-shooter extraordinaire and knows exactly what needs to be done. When Willie's on the job, Jerry has often commented that it seems Willie singlehandedly is keeping Acme's facility humming to the tune of the 1933 Dubin and Warren song, "We're In The Money."

Willie is unashamed of the fact he is an ex-con who paid his debt to society some time ago. He works hard, in many cases alone, hot and sweaty, doing what needs to be done. Unlike Barb's situation, errant machinery doesn't provide him much time to think up new work for himself to do. He is stressed out just keeping up with the work order backlog that's enough to keep two people more than merely busy. Although he's a perfectionist, Willie, too, presents a difficulty for Jerry. This ace machinist has a short temper and his bursts of anger are intense, but short-lived. Every time Willie walks into the office area, Jerry feels intimidated because it's impossible to discern what's on Willie's mind.

Jerry now sits at his desk, head in hand, suffering an Excedrin headache, trying to make a dismissal recommendation and come up with good reasons to support that choice.

If you had to advise Jerry about his choice, what would you tell him?

An academician's response:

This case reminds me of the decision-making exercises, such as The Kidney Machine or The New Plant Location, that are often part of management development programs. Managers are asked to pick a new plant site, or pick a recipient for a kidney machine, from a list of diverse and equally attractive or unattractive candidates.

Many decisions that managers make are not clear-cut black or white issues, and the purpose of these exercises is to help managers formulate a strategy for dealing with complex issues having competing options. (Mae West said that when she had to choose between two evils she always picked the one she hadn't tried before. However, I don't think that strategy is appropriate here).

I would not attempt to make the decision for Jerry. It's his issue to resolve, with the help of others at Acme, and he has to sort it out. But I would advise him to write out the pluses and minuses of each of the two people involved and evaluate them against a list of what he needs to make the unit run effectively and efficiently. Another strategy would be to consider Barb and Willie separately and estimate the impact their loss would have on the operation; that is, which one could he least get along without?

I would also urge Jerry to look at other, more creative, options rather than just sticking with those presented. GoodWerx is a contractor and should not be dictating what Jerry or Acme can and cannot do. Maybe Jerry can keep both Barb and Willie, or maybe he needs to let both go and hire someone else who will better fill his needs. And let's not focus too much on the negatives of Barb and Willie. Find out if these can be corrected, and if so, how would these two people look without the negatives. Or perhaps Jerry can reconfigure his staff to better handle the work if Barb or Willie is transferred. Often the best solutions to problems are not those initially offered.

Homer H. Johnson, Ph.D.

Director - Graduate Programs in Human Resources, Industrial Relations and Organization Development

Loyola University Chicago

312-915-6682

hjohnso@luc.edu

An attorney's response:

Jerry Atrique is about to step into a deep pit from which Acme may have difficulty extricating itself.

While many employers believe they have no legal liability for leased employees, that is, those who are employed by a temporary agency or an outside contractor and who perform work for the company, that is not the case. In those situations where a borrowing employer, like Acme in this case, exerts significant control over the leased employee, the borrowing employer can be held jointly liable with the loaning employer for any acts of employment discrimination.

How does a borrowing employer exert significant control over a leased employee? Control can be shown when the borrowing employer evaluates, disciplines, discharges or has significant input into employment decisions concerning the employee. By making a recommendation to GoodWerx that one of the two employees should be terminated, Acme may be placing itself into the category of an employer who exerts significant control over a leased employee.

What kind of legal hot water can Acme plunge itself into by making this recommendation? For starters, is either Barb Barricoste or Willie Yerwontey a racial or ethnic minority? Is either over the age of 40 or disabled by some physical or mental condition? Those are just a few factors that could provide one or the other of them with a discrimination claim if his or her job at Acme ended.

An additional issue exists with respect to Yerwonty. Because of his prior criminal conviction, Acme could face a claim that this history, used as a selection criteria, had a discriminatory effect on a particular minority group. On the other hand, retaining Yerwonty could also put Acme at risk if Yerwonty's temper caused him to injure a coworker or customer. Employers can be held liable for negligent hiring or negligent retention when it employs someone who it knows poses a risk of harm to others.

Putting the legal issues aside, if Jerry makes a recommendation on who to retain, he might opt to be guided by the principle, "Pick the employee you will miss the least." Courts actually have upheld termination decisions made on this basis.

Julie Badel, Partner

Epstein Becker & Green, P.C.

Chicago, Ill.

312-499-1418

jbadel@ebglaw.com

Our "In the Trenches" stories are created as a learning tool; the names of the companies and the people described within them are fictional. 

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