Employment Law Hrmg 5700

Katrinia Ward

Employment Law HRMG 5700

Mid-Term Project

Webster University

September 12, 2016

Abstract

The purpose of this project as Vice President (VP) of Human Resources for Moore Beer, Inc. is to provide information on which three (3) of five (5) employers to terminate. It’s my duty to provide the President with a memo describing which employee to terminate, the reasons for each termination, if severance should be offered and to who, and the risks that might be inherent with each particular employee in terms of post termination litigation. Out of the five listed for termination, two may be folded into existing opening in the rest of the company.

MEMORANDUM

To: President of Moore Beer, Inc.

From: Vice President of Human Resources

Date: September 06, 2016

Re: Moore Beer, Inc. Reduction in Workforce

INTORDUCTION

Moore Beer Inc. is a twenty-five million dollars a year micro brewing company that specialized in direct marketing for its various microbrew products.  They recently opened two new online marketing and direct distribution channels to increase the profits from the internet selling boom. After the launch of the channels there were technical difficulties and a decline in sales which caused a vast reduction in the company profits.  

The company strategized that by capitalizing on the internet selling boom it would increase their twenty-five million dollar a year profit. Instead of continuing to improve the technical matters the company decided to abandon its new direct marketing plan and to reduce its workforce. The President of Moore Beer, Inc. gathered a list of employees to consider for termination. The list consisted of five employees; three must be terminated and the other two are folded into existing openings within the company. As the VP of Human Resources, I will give reasons for each termination, if severance is to be offered and what risks might be inherent with each particular employee in terms of post termination litigation. The employees that were determined are Mike Smith, Phillip Pierce, Sally James, Margaret Jones, and Jenny Williams. Without breaking any employment laws, I must decide who is an asset or liability to the company.  

BODY

        Mike Smith is a 34-year-old Asian male that has a Bachelor’s degree in Information Systems from a great University. His overall performance evaluation with the company is above average. However, there are employees complaining about how thick his accent is which makes it difficult to understand him at times. There have been several problems regarding the way he answers calls from employees at the help desk. During his time with the company he has never been awarded or honored for his hard work or dedication with the company. He has no record of absenteeism. Unfortunately, his job of maintaining the existing computer systems will be obsolete after the reduction enforce.

        The risk the company may inherent from Smith’s post termination litigation maybe Title VII of the Civil Rights Act of 1964 with discrimination to National Origin and “English Only Rules”. National Origin discrimination extends Title VII protection to members of all nationalities. Adverse employment decisions based on and individual’s lack of English language skills have been considered violative of Title VII in situations where the language requirement bears no demonstrable relationship to successful performance of the job to which it is applied” (Twomey pg. 448-449). The risks that the company has with Smith’s post termination litigation is that he has a slight chance in court to win court due to the Equal Employment Opportunity Commission (EEOC) guidelines for “English Only” rules.

        Moore employees had a problem with Smith’s accent not the company as a whole. The issue not be able to fully understand Smith not his inability to communicate orally. Mike Smith’s litigation issue is the same as Fragante v. City and County of Honolulu, 888 F. 2d 591-Court Appeals, 9th Circuity, 1989 whereas the City and County of Honolulu was not found guilty of discrimination to National Origin. “Records conclusively shows that Fragante was passed over for of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent” (Twomey pg. 451). Even though his position will be obsolete, Smith holds a degree in Information Systems, has above average performance evaluations, and has never been absent; therefore, he would be an asset to Moore Beer Inc.

        Phillip Pierce is a 32-year-old White male that has Navy experience that goes beyond the abandon program. His overall performance and productivity evaluations is average. Nevertheless, Pierce Navy experience gives him qualifications beyond his position of quality programming since he holds no advancement in education. Pierce seems to have a problem with absenteeism. He has missed 17 days in the last two months and just informed HR of his neurological disease. He also feels that his peers have been treating him differently since he became ill.

        The risk the company may inherent from Pierce’s post termination litigation may be the American with Disabilities Act (ADA) due to his illness. Since Pierce has already told HR about his neurological disease, he can file suit for reasonable accommodations. Pierce must prove he is able to perform the essential functions of the employment position. Pierce case would be the as the Huber v. Walmart Stores, Inc. 486 F. 3d 480-Court of Appeals, 8th Circuit, 2007. Depending on Moore Beer policy for reassignment to another position. Moore can also state that he told HR about his illness after his absenteeism and he should have requested FMLA (Family Medical Leave Act). By requesting leave Pierce wouldn’t have this negative judgement on how bad the programming was and how it poorly effected the company’s profit and revenue. Even though Piece has Navy experience, his overall performance and productivity is not pleasing, absenteeism, and no advancement degree makes him a liability to the company. Moore Beer Inc. must keep in mind that, “an employee is not obligated under the ADA to make accommodations that would be an “undue hardship” on the employer” (Twomey pg. 564).