FAQ-Can we demote an employee?

FAQ - Can we demote an employee?

Q. Six months ago we promoted one of our employees into a supervisor role.   We have recently found out that this employee cannot read or write.   We feel that this puts us at risk, because we are a food manufacturer and there are certain procedures that must be read and followed.   We assumed when we promoted this employee that he could read.   We are concerned that if we demote this employee we will be opening ourselves up to legal implications.   What are your thoughts?

A.  From what you have mentioned, this particular employee has been fulfilling the role of Shift Manager for at least 6 months. This suggests that the individual possesses the skills and abilities that would have made him/her suitable for the position in the first place.   In addition, you must have promoted this person based on his/her ability to perform the job, so you must have trusted this person''s abilities and seen value in the individual.  

As an employer, you may want to take this opportunity to leverage the value of the employee by helping him become literate.   Perhaps this means sending the employee to literacy courses and reimbursing some of the costs of these courses.   This is as much of a moral issue as it is a legal issue.   Your first concern as the employer is to treat the matter with sensitivity and confidentiality. You may also want find out whether this person is illiterate due to some type of illness or disability such as dyslexia.   If this is the case, you may want to consult someone from your state department of labor regarding the American Disabilities Act and the employer''s role in such a situation.

In any case, employers usually have a duty to accommodate their employees except in certain situations.   For example, employers have a legal obligation to ensure the safety of all its workers and customers and if this individual''s illiteracy (or disability) poses a direct safety hazard to himself, coworkers, or customers, you can take the necessary legal steps to remove him of that duty.   However, this individual''s problem must pose a DIRECT threat to the safety of others in order for action to be undisputedly justified.  

If you are still interested in demoting or relocating this individual, your best bet is to contact your company''s labor lawyer or a labor lawyer in your city.   Demoting or transferring an employee can be seen as constructive dismissal, which would make your company liable to compensate for any damages awarded by the courts should the employee decide to sue.   Transferring the individual to another position may still constitute as constructive dismissal unless the new position offers the same level of responsibility, salary and benefits, and control as the previous position.   This applies to demotions as well as the employee will undoubtedly be upset that his/her autonomy, decision making abilities, responsibilities, etc. have been seemingly stripped away.

You may also find it beneficial to contact a labor attorney in your area.   It is important to remember that HR.COM is not in a position to provide legal advice, and that any information or suggestions provided are for informational purposes only.