Must you consider transferring a problem employee before lumping him in a COVID-19 reduction in force?

I’m reminded of the Mötley Crüe hit Same ‘Ol Situation (S.O.S.). The actual lyrics have nothing to do with employment law — sexual harassment, maybe? — but I digress…

The song title carries a little HR lesson today; namely, just because your company is going through some tough employment decisions doesn’t mean that the rules have changed.

Courts generally don’t second-guess HR decisions.

For example, there’s this Sixth Circuit decision about an employee who claimed that her former employer discriminated against her when it eliminated her job as part of a reduction in force. The plaintiff alleged that the company never considered other open positions for which she may have been qualified to perform. Put simply, the company discriminated (on her disability status and age) when it failed to transfer her.

But, here’s the thing. A transfer to an open position may be a reasonable accommodation when the individual with a disability is qualified to perform the duties of that new job. However, a company need not transfer when it has already decided to reduce employee headcount for reasons unrelated to disability (or any protected class, for that matter). Reducing headcount and transfer decisions are separate and distinct.

The Sixth Circuit decision doesn’t involve COVID-19. But, if your business wants to reduce employee headcount to save money during this pandemic, that is an agnostic decision that courts generally won’t second guess as long as a legitimate business reason motivates that decision.

But don’t ignore your policies and procedures.

The Sixth Circuit decision about which I’m blogging today had a dissenting judge. He, too, noted that a business does not need to transfer an employee in lieu of termination. However, if the employer ignores an internal hiring policy (e.g., one of appointing qualified internal candidates to open positions before posting job openings online), then the decision not to transfer may draw more scrutiny. Indeed, the employer bears the burden of explaining why it departed from its transfer policy to terminate the employee instead.


On the one hand, this pandemic provides some good “cover” to terminate problem employees. But, you may need to justify your employment decisions, especially when internal policies and procedures dictate considering other employment options instead of termination.



“Doing What’s Right – Not Just What’s Legal”
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