(Mods this contains a legal question, but please move it if it contains too much other stuff.)
My boss owns three video stores. He has to close one in order to try to keep the other two open a little longer. The two people who work at the closing store have the most seniority among all the employees at all three stores. I have the least seniority of all. So even though it’s not my store closing, the presumed plan is that “Celia” from the closing store will take over my job.
Some possibly relevant facts:
[ul]
[li]My boss would rather keep me:[/li][LIST]
[li]I’ve been at this store for 3 years, and the month I was gone the customers complained; I’m the local movie encyclopedia[/li][li]It could of course have been coincidence, but sales dropped that month too[/li][li]I do all the signage, all the ad writing, all the display research/creation, all the “added value” stuff[/ul][/li][li]Celia is the only woman remaining in my boss’s employ[/li][li]She refuses to float between the remaining two stores, even though that’s what my boss wants[/li][li]She’s actively looking for another job; she’s just going to hang onto this job long enough to give her job search less urgency[/li][/LIST]
Some facts that are less relevant legally, technically, but still part of the bigger picture:
[ul][li]I’m currently homeless until I get another couple paychecks under my belt; if I lose this job next week I’ll be truly homeless[/li][li]Celia has no real interest in movies; this has always just been a retail job for her[/li][li]Celia is married, with a husband who works[/ul][/li]Bottom line: outside of the legal issues (why this is in GQ), I objectively “need” this job more than Celia. On a value-as-employee level, my boss would rather have me in the job. BUT. And here’s the promised GQ part: My boss thinks that if he keeps me on, rather than Celia with her greater seniority, he will be open to a gender-discrimination lawsuit. Possibly also an age discrimination lawsuit: Celia is the oldest employee as well.
What are the options? Can I reliably tell my boss he can choose who he keeps on, without fear of lawsuits? Will the ball be in Celia’s court as far as whether she chooses to sue or not?
What are my options? If my boss fires me, the employee he has explicitly acknowledged as more valuable in the position, am I the subject of any kind of discrimination?
And then the MPSIMS portion of the thread: what should I do? What would you do?
If you live in an at-will employment state, I believe your boss can fire Celia at any time, for any reason or no reason at all. As long as he doesn’t fire her because she’s a woman, he should be good. Of course, she can claim discrimination and attempt to sue him, but she’d have to prove that. And of course, he can put you off by claiming he can’t fire Celia, but that doesn’t mean he can’t.
If you don’t live in an at-will state, then I don’t know.
Hmm. Well that’s very helpful. I have to decide how to get that to my boss without it seeming like I’m going, “FIRE CELIA! FIRE CELIA!”
(Although another possibly relevant point is that Celia doesn’t like me. Long story: part of my job is to create cover art for shelf boxes when DVDs come in box sets–when they’re not “rental ready.” So I get bored sometimes. So I photoshopped Queen Latifah into the cast of all four seasons of Lost, and Celia finally noticed it when her store received the PDFs I sent them of the covers for Season 4. She refused to put the discs on the shelves till I “fixed” them. “I consider myself a fan,” she said, “and that’s just not funny.” My boss told her to get over it; she didn’t get to decide when things went on the shelf or not. She’s never forgiven me for that incident.)
You could just be honest. Tell him the things you posted in your OP: That Celia has a husband and is looking for another job, while you will be homeless if you lose your job. Point out that the customers like you. Tell him that this is more than a job and a paycheck to you. If he mentions seniority, then you can direct him to the State site.
…
I was on a VHS cover once, in the '90s. I don’t remember the name of the film. Dr.-something. Might have had a 2000 or something in the title. I know it was released under a couple of titles. I’m wearing a white lab coat and a balaclava, and carrying a gun. Three others are similarly equipped. No way to tell we’re not actually in the film.
Does the word “boss” mean anything anymore? If in fact you are the more valuable employee, and your boss knows it, what is the problem? Celia’s age and gender do not add up to guaranteed employment. Tell your boss to grow a spine.
No, my boss is an uncomplicated fellow. Picture Bob’s Big Boy, in a Hawaiin shirt and khaki shorts. With Asperger’s. He can’t lie; he can’t even be subtle or indirect. If his fear of firing Celia were a cover story for his truly wanting to fire me, you’d know: he’d giggle and stammer and present all the classic tropes of a child who’s a bad liar. Not necessarily relevant to this discussion, but just know that he really believes he’d put himself in some kind of jeopardy if he laid Celia off instead of me.
Ha. Yeah, alleviates the boredom. Did you know Patrick Swayze was in Outbreak? As a monkey? And I snapped a phone pic of a really drunk customer one night, now he’s in the first season of Grey’s Anatomy. (A show he’ll never rent; he rents only straight-to-video shoot-em-ups starring Dolph Lundgren or Lorenzo Lamas; he’s the customer who said Children of Men sucked because “it’s just a ripoff of Cyborg 2.”)
We had this incident in a factory I used to work for (in Spain, definitely not “at will”), where Central (in the US) said to fire “the fifteen people with least seniority”… it took about five minutes for the whole factory to go Greek chorus and say “that doesn’t make sense at all!” and about five days for the managers to explain to Central that waiting for the most-senior guy to retire (in two months), giving early retirement to the next five, then adding the six people who had other jobs, and only then looking at least-seniority made a lot more sense (the five most senior happened to be the whole maintenance department, three of the least senior were part of their replacements).
If he needs to fire people for economic reasons, he should fire those that make most economic sense, which isn’t always the least-senior ones.
Have your boss tell her that floating between the remaining 2 stores is a required condition of employment, and then schedule her between both of them.
She will either get mad and quit, or accelerate her search for another job. Either way she will be gone soon, and then he can keep you.
To be honest I don’t think what you say about the law will have much credibility with your boss since (1) you’re not an attorney, and (2) you’re obviously not an unbiased party to the process. You should just explain your situation to him as best you can and hope for the best. And start the job search right away in case you get laid off. I sincerely hope that things work out for you.
Any employee can sue. It doesn’t mean they’ll win. You should still try to convince your boss to keep you. Do not passively say I see and leave without letting him know it’s not OK with you. I think you should work on the fact that every employee is hired for a certain store and whatever store closes that job goes. This of course only works for you if your store stays open.
I beg to differ, no offense intended. This is why you are headed out the door. Your talent at work has zero influence, and his position at work has total influence. If he is inconvenienced even a little by not canning you, you are history. Sorry, but I’m in a very similar situation at my job, and if your boss is uncomplicated (read:idiot), save yourself the frustration, because while you are cataloging your value, he will hear 'blah, blah, blah, boss in jeopardy, blah, blah," and get looking for another job, since you’re a goner as it stands.
If your boss has a simple mind, it’s likely he has not kept track of any employee performance reviews and has no documentation upon which to fall back.
With everyone wanting their fair share of non-discrimination, the boss has a legitimate concern not to discriminate against the aged because of their age. However he can readily discriminate because of their competence or availability for hours and location, or any one of a number of other non-age reasons. He needs data to feel like the decision is defensible.
Give him data. You gave it to us…
I am not inclined to think it will change his mind, however. Fearful and weak bosses are fearful and weak. And it may be that among his weaknesses is that he would rather–for whatever reasons–keep Celia on. It may be that the simplest approach in his mind is to reassure you he’d rather have you but is being externally compelled to keep someone else. Happens in all sorts of relationships.
I’m not sure if this has been said already, but remind him that Celia will be leaving soon anyways. So he can fire Celia now and have you forever, or he can fire you now and lose Celia in the coming months. IOW he’s going to lose her, or both of you.
I would never do this while you still have hope of reasoning with him, but as a last resort, I suppose you could point out to him that you could bring a suit for anti-gay discrimination just as easily as she could claim sexism.
At will or not, the employee could try to argue some kind of discrimination. At will is not permission for discrimination.
However, I think the boss has a strong position and should work to document that position at this time. If a lawsuit comes up, Celia will have to prove that her firing was based on age and/or gender rather than other reasons. Seniority is not a valid discrimination reason; she could use it for breach of contract only if it was specified in a contract. So, the documentation he should have one hand:
employee performance reviews
the offer of a position split between two locations, which was refused
the closing of the store as primary motivation for the layoff
the lack of a policy rewarding seniority
As an employer, I would not consider her husband or your potential homelessness as a motivating factor in the documentation - both get too close to non-work related issues. If he documents the husband, for example, she might use that as evidence that she was discriminated against as a woman. (Again, not absolute proof, but evidence nonetheless).
After documenting all of this stuff, I would keep it very cut-and-dried. You’re a valuable employee and need to stay where you are. Celia has an opportunity to continue working, but split between the two stores. That’s an offer she can take or leave. And, if she refuses that offer, it should get him out of unemployment benefits because he’ll be able to honestly say that she was offered continued employment and refused it.
