Speaking at a recent employment law seminar in Albany, New York, August S. Brown shared his thoughts on why employers may want to wait before making any significant changes to an employee’s job responsibilities and compensation when the person is promoted within the company says William D King. He said: “If you promote somebody and put them in charge of other people, don’t change their job duties or pay because they would basically be demoted.” The president of Brown & Brown Employment Practices Group in Delmar, New York says that firing someone for cause after they’ve been demoted could be difficult under Title VII of the Civil Rights Act of 1964 because it could be seen as discriminatory based on race or sex.
Title VII prohibits discrimination in practices on the basis of race, color, religion, national origin, gender and pregnancy. For example, a demotion followed by termination could be viewe as payment in lieu of discipline for actions that resulted in the demotion. Title VII prohibits employers from retaliating against employees who file discrimination complaints or opposing employment practices they claim are discriminatory.
Here are some reasons:
- Also considered is whether allowing the person to remain employed would create an hostile work environment under Title VII due to age, sex or race based on comments and acts made by co-workers and supervisors related to the promotion/demotion situation. Retaining an individual after making derogatory remarks about them based on their race or sex may subject an employer. To additional liability under Title VII if it’s deems the remarks were serious enough that they creat a hostile work environment for the individual.
- The Age Discrimination in Employment Act prohibits discrimination against employees and applicants who are 40 years old or older. Courts have held that demoting an older worker because of his/her age can lead to significant legal problems for employers.
- Brown says it is not advisable to make changes (pay, job responsibilities, etc.) after a recent promotion unless there were reasons unrelated to the person’s race, sex or age such as poor job performance due to lack of skills needed for the new position; insubordination; too many absences; refusal to perform assigned tasks and other serious infractions that would justify demotion or termination explains William D King. Otherwise, he notes: “You should be prepared for a fight.”
- Brown also cautioned about the potential legal liability that can arise when a person with authority over other employees is promote. And thensimilar or more responsibility without receiving a significant financial or status increase. Under the Americans with Disabilities Act, it may view as discriminatory based on disability due to conditions such as substance abuse; depression; mental illness; stress; and alcoholism.
- Brown says employers should always consult with their employment law attorneys before making any significant changes to an individual’s job responsibilities and compensation following a promotion to ensure they do not create additional legal problems for the company.
- August S. Brown has been practicing labor and employment law since 1968 after graduating from Albany Law School of Union University in New York where he was Associate Editor of the Union Graduate College Law Review says William D King. He has worked as an attorney for both large and small companies in connection with settling labor disputes; drafting arbitration awards, first contracts and negotiating collective bargaining agreements. Brown has appeared on network television dealing with employment issues.
- Brown Employment Practices Group is a full service law firm specializing in all aspects of human resources management. Including compliance with federal and state laws governing hiring practices; wage and hour regulations; policies related to absenteeism; medical leaves of absence; employee termination issues, I-9 forms (work authorization documents required by the Immigration Reform Act); family leave matters (Pregnancy Discrimination Act); Equal Employment Opportunity laws (Americans With Disabilities Act), sexual harassment matters (Title VII) and other areas affecting the workplace. The firm offers consulting services as well as representation in court and arbitration proceedings.
If you are fired or demote unjustly, it’s important to take action. Because your chances of prevailing in court increase if you promptly challenge the employment practices.
If you are in an organization with two or more employees. It’s best to consult an experienced employment law attorney BEFORE problems arise.
Don’t wait until you are fired before consulting a lawyer for legal advice. Even if the demotion is not illegal, you should still seek legal representation. Because of its potential effect on your future career prospects explains William D King.
According to Brown, employers who discipline or demote employees without doing their homework first risk paying costly lawsuits and fines while increasing the likelihood of unionization which can lead to significant loss of managerial control. Employers must proceed cautiously when making changes following promotions. So they don’t create additional liabilities under state and federal laws, he said. If companies want to reduce costs due to poor performance or misconduct by someone. Who has been promote, should seriously consider other options. Such as cutting the employee’s hours or temporarily reassigning them to a different department.