According to a developing trend in recent labor court rulings, employers have a duty to make an effort to locate alternative positions for certain groups of employees (such as disabled employees and employees who are close to retirement age) before discharging them. The court has noted that the scope of this duty and the actions it requires will vary from case to case and that that duty stems from the duty to act in good faith and be transparent in the scope of labor relations.
This requirement should not be viewed solely through the result (i.e., whether the employee was indeed transferred to an alternative suitable position or discharged due to the lack thereof), but rather whether the employer carried out a real and honest process to find an alternative positon.
In examining whether an employer owes an employee this “duty to make an effort,” the courts will examine, among other things, the length of the employee’s service with the employer, his or her proximity to retirement age, and the reason(s) for discharge (e.g., a redundancy as opposed to a performance or ability issue).
The court has noted that the employer’s obligation “to make an effort” in this context has two aspects:
- Substantive aspect. Employers may want to examine whether there is a relevant alternative position. Relevance is examined in light of a wide range of considerations, including the organization’s needs, the availability of vacant roles, the employee’s suitability for the position in the light of his or her qualifications and abilities, the impact of staffing the position on labor relations– (whether on the workplace as a whole or on a specific department), and more.
- Procedural aspect. Employers may want to conduct a proper and serious search to find an alternative position while simultaneously including the employee in the process and giving him or her the opportunity to indicate suitable alternative positions.
Comment
Employers may want to exercise extra prior to initiating the termination process, especially regarding employees who have had a long tenure or are close to retirement age or disabled. In such cases, it is important to examine whether the employee’s particular circumstance may impose the “duty to make an effort” on the employer as a preliminary step, requiring the employer to try to find an alternative position for the employee while involving the employee in the process before proceeding to discharge.
Written by Keren Assaf of Herzog, Fox & Neeman and Roger James of Ogletree Deakins
© 2019 Herzog, Fox & Neeman and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.