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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Keep Transfer Decisions Out of Court
Published by Personnel Policy Service, Inc.
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THIS WEEK'S E-TIP: Keep Transfer Decisions Out of Court
Are your managers making transfer decisions that could lead to
discrimination charges? Find out below what types of claims can be filed
and how to prevent them. |
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THIS WEEK'S E-TIP: Keep Transfer Decisions Out of Court
A decision to
transfer an employee can come up for many reasons,
such
as to respond to an employee's request for a more flexible schedule
or to
deal with performance problems. Although transfers can help solve
problems and relieve pressures, they also can disrupt the workplace
and
reduce morale if made improperly.
For example, transfers that appear to limit, segregate, or
classify
employees on the basis of their status as members of protected
classes
may violate equal employment opportunity laws and cause resentment.
In addition, employer-initiated transfers may be viewed as
retaliation if
the transferred employee has recently filed a complaint or lawsuit
against
your organization. To prevent the appearance of unlawful motives,
you
should follow specific procedures and base transfer decisions on
objective criteria that are clearly communicated to employees.
* Reasons for Transfers *
Job transfers generally fall into one of two categories: those
initiated by
management and those made in response to an employee's request.
Transfers initiated by the employer may be necessary because of
temporary workload imbalances, the need to rotate employees to limit
exposure to harmful conditions, corporate restructuring,
dislocations
caused by job elimination or reductions in force, and demotions in
response to disciplinary or performance problems.
Employees may initiate a transfer because they want new or broader
experience, they are having problems with coworkers, they want to
use
their skills better, or they need accommodation for disabilities or
family
care responsibilities. Either way, transfers may be temporary or
long-
term, depending on the organization's business needs and may affect
the transferred employee's rate of pay.
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Some supervisors use transfers to get rid of poor performers and to
avoid addressing performance issues, a situation that can cause
major
problems. Not only does this type of transfer fail to provide
guidance to
the affected employee, but it also can result in a discrimination
claim if
the employee suffers any loss of pay or status because of the job
change. Instead, the human resources department should help
supervisors deal with performance problems, rather than pass them on
to other departments. It should also make sure that all performance
issues have been documented and reviewed before a transfer decision
is
finalized.
* Discrimination Claims Arising from Transfers *
Any transfer decision can result in a
discrimination claim if
implemented
improperly or for the wrong reasons. Federal and state laws
(including
Title VII of the Civil Rights Act) that prohibit discrimination in
the hiring
process also apply to transfer decisions. These laws typically bar
discrimination on the basis of membership in a protected class in
any
"terms, conditions, or privileges of employment." Generally, courts
look
at whether employees suffer any loss in pay or benefits and whether
employers follow specific procedures, use job-related criteria, and
have
legitimate business reasons for the transfer decisions.
For example, in Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003),
a
Justice Department employee failed in his claim that he was denied a
transfer to litigation unit chief because of his race. The employee
could
not refute the legitimate, nondiscriminatory reason given by the
Justice
Department that another candidate was more qualified and had more
management experience.
Similarly, in Curby v. Solutia, Inc., 351 F.3d 868 (8th Cir. 2003),
the court
found that a former division vice president and general manager
could
not prove discrimination when she was transferred, without reduction
of
pay or benefits, to another position. In its decision, the court
noted the
fact that her previous position had been eliminated, which was a
legitimate nondiscriminatory reason for the transfer.
Transfers to positions with the same pay and benefits still may be
considered adverse employment actions and generate discrimination
claims if they involve a loss of job duties, rank, or authority. For
example, in Brown v. Lester E. Cox Medical Centers, 286 F.3d 1040
(8th
Cir. 2002), the Eighth Circuit determined that the employer violated
the
Americans with Disabilities Act when it transferred a surgical
nurse, after
learning about her multiple sclerosis, to a temporary position in a
supply
room. Although the employee did not experience a loss in pay, the
court
took into account that her new job duties were solely clerical and
did not
involve the use of her nursing skills, that the transfer was viewed
as a
status demotion, and that she was expected to look for a new job.
* Retaliation Claims *
Employees also may sue for retaliation if they suffer an adverse
employment action for exercising a legal right, like complaining
about
discrimination, filing a workers compensation claim, or requesting
leave
under the
Family and Medical Leave Act. For example, many federal
and state discrimination laws generally prohibit retaliation against
individuals who oppose practices made unlawful by those statutes. In
addition, the Sarbanes-Oxley Act protects employees of publicly
traded
companies from retaliation for complaining about or disclosing
certain
kinds of fraud by their employers. So, an employee who has filed an
employment discrimination claim or reported illegal activities can
sue for
retaliation if later demoted or transferred to a less desirable
position.
To succeed in a retaliation claim, the employee must be able to
prove
the following three elements: (1) that he engaged in a protected
activity
(such as filing a discrimination claim or opposing discrimination);
(2) that
he suffered an adverse employment action as a result of the
transfer;
and (3) that there is a causal connection between the protected
activity
and the adverse action. As a general rule, the employee must show
that
the transfer resulted in a significant change in employment status,
such
as a loss of pay or benefits or significantly different hours.
So, for example, in Stutler v. Illinois Dept. of Corrections, 263
F.3d 698
(7th Cir. 2001), the Seventh Circuit found that a lateral transfer
without a
loss in benefits did not constitute retaliation. The fact that the
employee
did not like the new position was irrelevant since there was no
evidence
that the transfer decreased her responsibilities or benefits.
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* Tips to Prevent Claims *
As the decisions above show, the key to preventing legal claims
related
to transfers is to make these decisions in accordance with specific
procedures, for legitimate business reasons, and based on objective
job-
related criteria. In particular, you should:
1. Train supervisors and managers to make decisions based on
performance, skills, and experience, and not on group stereotypes.
2.Establish procedures for considering transfers so that human
resources controls the process. For example, have a policy to post
available jobs, gather input from all affected personnel, and make
sure
the human resources department and hiring manager (as opposed to the
current supervisor) control the decision. By implementing these
steps,
you can help ensure that performance issues are addressed and that
problem employees are not shuffled from department to department.
3.Limit supervisory access to the personnel files of transfer
candidates to performance appraisals, attendance records, recent
disciplinary actions, and other performance-related information to
help
ensure that decisions are based on nondiscriminatory reasons.
4.Make sure any change in pay, benefits, and other terms and
conditions of employment are justified by the new position.
5.Document the rationale behind transfer decisions and explain the
decisions to the affected employees. This step is particularly
important
when the transfer results in demotion.
In addition, you should encourage employees to discuss concerns
about
transfers with the human resources department and then allow for an
appeal through your complaint resolution procedures. Your careful
attention to detail will help deter litigation by showing employees
that the
transfer process is fair and will leave you better prepared to
defend your
actions, if challenged. |
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