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How does Seniority work? - Georgia

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  • How does Seniority work? - Georgia


    Hello, I am a buyer for a small Charter Airline based in Georgia and I have been forced into an overnight shift by my manager whom advised me that my day shift was given to another employee with more seniority than me. I completely understand that seniority plays a role when determining vacations and preference of shift, etc... however I do not understand how seniority trumps job titles.

    When I researched seniority and its uses I found that within the same job classification/titles, it surely has merit, but I have yet to see where it is used to take preference over a higher job title. In this particular industry, the lower your Grade Level the Higher you are in regards to company hierarchy. I am a Grade level 15, and I was bumped by a Grade level 17, which is a more junior position. The manager is friends with the person whom I was bumped for, not to mention, I am a 42 yr. old black male, and the other person is a 33 yr. old white male. I have never had any disciplinary actions for my work performance or attendance or anything, and the only reason I am being told I was moved is because of my lower seniority with the company.

    I asked not only my manager, but my HR dept. if a janitor with 20 years tenure was transferred to my department as a paper filer or another junior level position, could they be given preferential shifts and/or hours based on their knowledge of our industry? I was told by my HR dept. that those decisions are left to the department managers, which basically says that they are unwilling to get involved.

    I have tried to be a team player and accept this shift change, but I have had to resign from my 2nd job causing a financial hardship on my family. My 2 sons from a previous marriage moved in with me making a total of 5 children in the house at night with my wife to care for alone. Needless to say this has placed a strain on our relationship as the added responsibility was shared by me working during the day.

    I am going into my local EEOC office in the morning as I see this as discrimination as I am not satisfied with "Seniority" as a valid reason for me to work an unwanted shift to a junior title. I didn't mention that my company is currently under a Chapter 11 so we lost one of our more senior buyers in the process, so this person in the junior role, is earning 16 hours a week overtime or 64 hours a month because he cannot be promoted, as it would beg the question of why a non-essential junior person were retained and promoted while an essential position eliminated.

    I believe that this is a clear case of discrimination either race/age or both as I have lost over $1000 a month in this move and this guy is gaining not only more income, but a preferential shift. How is this fair? I had been in my department for 1 1/2 yrs. when this person came to the department, yet even with a junior role, I am involuntarily moved and told that I should be happy that I wasn't furloughed as everyone is sacrificing and suffering. If being able to earn 64 hours a month overtime and a day shift is suffering, I'd rather suffer like him.
    Last edited by tpcarson411; 07-15-2012, 06:14 PM. Reason: Added information

  • #2
    Assuming that we are talking about a non-union private sector employer, then job titles and seniority are both legally meaningless. There is no law requiring employers to make decisions based on job titles or seniority. Now a union contract could change that. Governmental employers will civil service rules could change that. But an employer faling to make decisions based on job titles or senority when there literally is no legal requirement that they do so is a "who cares". Legally employers can make these changes on a go forward basis UNLESS an actual law is being violated. This is a function of "at will" employment. That is generally considered to be termination law, but it is actually a whole lot broader legally.
    http://en.wikipedia.org/wiki/At-will_employment

    Now a violation of an actual law such as Title VII (decisions based on gender, race, national origin, etc.), or ADEA (handles certain age discrimination matters) is legally a very different matter. We now have actual laws which in theory could have been violated.
    http://www.eeoc.gov/laws/statutes/titlevii.cfm
    http://www.eeoc.gov/laws/statutes/adea.cfm

    The one problem with either such action is that you need to be able to prove that the decison was based solely on race or age. Can you? Presumably the employer will have their own very different reasons for making the decision and you will need to be able to convince a judge/ALJ that your version is the correct version.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Proving my case

      Thank you for your comments. My question is then, wouldn't my employer have to show why I was moved, with cause? Especially since I was promoted to my current position from the junior level position. I want to ensure that I am understanding your point. So to my understanding, "At-Will" employment means that the company can make whatever changes they choose regardless of Title or Grade Level and unless there is some clearly identifiable proof, it is legal.

      I didn't mention that there are 2 day shift buyers, I was one and the other is a white female, whom also has less company seniority than this new person to the department. I understand that you say that seniority nor titles matter, but all things considered equal, wouldn't it be for my employer to show why I was selected for the night shift being that I was in the role and the new person didn't have prior purchasing experience?

      I sincerely appreciate your input as it surely has given me something to consider being that this may not be as evident as I had initially thought. If there are no laws governing the selection of employees for certain jobs and Titles are more or less meaningless, then what must one do to avoid this level of what seems to be unfair treatment? Or while working in an environment or for an "At-will" employer one should and must understand that unfair treatment is a possibility.

      Needless to say I am disheartened as I felt that my willingness in my previous role afforded me the promotion that I received yet only to be bumped by one in a junior role, without so much as an opportunity to fight for my shift. I'm beyond words...

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      • #4
        Legally the burden of proof is on you to demonstrate that your employer acted as they did solely because they were violating the law but passing you by because of your race or age. Your employer is not required to justify their business decisions and judgement. Their company, their decision. If the guy who got the job is friends with the one who was chosen, that is maybe unfair to you but it is entirely legal and not uncommon.

        Seniority has no legal meaning and is only one method an employer may choose to use in deciding promotions and titles. It is far from the only method and is actually one of the least preferred methods for making business decisions. The best person for a given job isn't necessarily the guy or girl who has been around the most tenure. Were that true, the CEO would just be whoever was there the longest, even if it was the janitor. No one starting out would have a chance to move up until everyone hired before them was promoted, no matter how hard they worked or how strong their skills.

        "At will" isn't a law per se but it is concept by which employers can fire someone for any reason or no reason so long as they do not violate a law and employees may leave with or without notice for any reason or no reason.

        This is going to sound harsh but your personal circumstances are not your employer's concern. Their concern is to hire the best person for the job and ensure the viability of the company. Period. The fact that your wife is overwhelmed by the number of children you have and that you had to leave a job that was not with the company is irrelevant. There is no way a company can or should take everyone's personal situation into account when making business decisions. How fair would it be to the guy who worked hard, and was the best candidate to miss out on a promotion because someone else had child care issues and outside obligations? I'm sure if the roles were reversed, you would be even more upset if you were not chosen so that someone else could still work another job.

        What proof do you have that you were not chosen because of your race and or age?
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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        • #5
          Flip the prosepctive a second. Prior to the 1960s, all employment was "at will". If we move far enough back in time, we have indentured servitude, slavery and other legal institutions where workers literally could not quit. Around say 1770 a majority of adults in what would become the U.S. were some flavor of indentured servants (or worse). By say 1790 indentured servants (but not slavery) was largely over and employment at will was what replaced them. So we have from 1790 to say 1960 something where (excluding slavery) employment at will is the law of the land. Tons of case law and legal decisions. When laws such as Title VII and ADEA start getting passed in the 1960s, these laws do not eliminate employment at will, but rather create some specific narrow exceptions.

          The actions you describe are not inherently illegal. These are actions in which there are literally hundreds of years of case law saying that the actions per se are legal. HOWEVER, if we can say as a fact that the REASON for these actions was a violation of Title VII or ADEA, then an illegal action has occured. The employer does not need to prove that they had a legal reason, or any reason at all. There just needs to be an absence of an illegal reason. The burden of proof is on the employee to show that a law was violated, not on the employer to show that the law was not violated. It would be perfectly legally for an employer to take random actions (for example) based on rolling dice or cutting cards as their decision making process. It would be perfectly legal for a Yankee's fan boss to discriminate against Met's fans employees because one's sport's team affiliation is not legally protected.

          Now, would a smart employer have good reasons that they can support in court for their actions. Heck yes. While they do not have to prove their action had good cause, if this turns into a shooting match, the judge/ALJ will likely bring it up. The employer's best defense should this happens is a good business reason. Absence this, if the employee is the only side with a good story, it makes the judges/ALJ decision a whole lot easier. There is no rule that the judge/ALJ is required to believe anything either side tells them.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Originally posted by DAW View Post
            When laws such as Title VII and ADEA start getting passed in the 1960s, these laws do not eliminate employment at will, but rather create some specific narrow exceptions.
            I started working before Title VII and the ADEA were passed - shoot, they let men smoke at their desks but women couldn't. (Later all changed.)
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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            • #7
              Thank you all for your comments as they are very interesting. As I think more and more about this situation, I am more and more interested in the real reason for my employers actions and I believe that an EEOC investigation may discover more than I can. I know also that there was another person whom is of the same Grade Level/Title as I am whom is a more experienced Buyer with more seniority than the Junior grade employee whom was given my shift.

              She is a white female whom if the reason given was wanting someone with more seniority or more experience, why was she not given my position as she was clearly more qualified than the two of us? I surely would not have even questioned any level of discrimination as surely with her I was out gunned and would have taken this involuntary move without question. If it were a matter of job expectation, why wasn't I told of the level I needed to perform to ensure that my shift would be secure? There are just so many questions I have and it doesn't make things easier when other department managers and employees see this as discrimination being that I am the only black male in my department and I am the only Black male that has ever been in this department from what I have been told.

              I mentioned the 2nd job because due to the fact that my level of income was greatly affected negatively and with paying the guaranteed overtime for the junior employee, this doesn't make good business sense as with his overtime pay he is surely earning more than I am.

              Also, in my initial post, I stated that we were a small Charter Airline, our parent company with our company has over 500 employees so maybe we aren't as small as I stated earlier.
              Last edited by tpcarson411; 07-15-2012, 10:07 PM.

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              • #8
                I think you misunderstand how an EEOC investigation works. The burden of proof is on YOU to prove that the reason you were not given the job you wanted was because of your race and or age. The EEOC is not going to dig into why the company did what they did and especially if someone of a different race than you but the same as the one chosen was passed over as well, it really weakens your case. First, you have to show why racism or ageism is the real reason, then the EEOC wil look into those specific complaints. A complaint that simply states you were not chosen and seeking the reason why is going to go exactly nowhere. Unfair is legal. Poor business decisions are legal such as increasing OT costs. Giving the job to a friend is legal. Not using seniority to promote is legal. Passing over the "superior" employee in lieu of a more junior one is legal. So far you have described nothing but completely legal actions and not provided ANY reason at all to even suspect that you have been discriminated against other than you happen to be a different race and over 40. Especially if you are the only member of your race employed there, you are going to need a whole lot more to demonstrate that is the reason as anyone else they chose would have been a different race than you.

                Seniority at the company is absolutely a legal and not uncommon reason to promote. It is very often the "tie breaker" and many companies reward loyalty by considering it when making promotion decisions. It may or may not be the best method but it is nuetral and valid and completely legal. It is going to be VERY hard to counter this.

                If you want to know what you need to do as far as performance to get the next promotion, you need to talk to your supervisor.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                Comment


                • #9
                  EEOC investigations take a long time. If you are looking for a quick fix, that will not happen.

                  Investigations and hearings take months and months. My company filed our statement in a case last Novemener (claim was before that) and didn't hear back for 4 months. At that point a hearing was scheduled that was another 2 months away. EEOC found no cause and the employee appealed. Another month for the hearing and within two weeks, original determination was upheld.

                  That was an easy case. I have another case that was five years start to finish. It pre-dated my employment with the company but I ended up doing the final settlement paperwork.

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                  • #10
                    I agree the EEOC is not a quick fix. It can take literally a year sometimes to get a determination. And many times, the determination is that there is no determination and you are just given a right to sue letter meaning you will need to purseu a case through the courts.

                    Basically, why do you feel that you were discriminated against? Can you be specific other than "someone with less seniority than me was promoted?" It would help if you have specifics.
                    I find that the harder I work, the more luck I seem to have.
                    Thomas Jefferson

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                    • #11
                      For your manager to change your schedule and effect your salary do to a change in position is not illegal. Especially if he claims to have seniority. To file for any sort of discrimination seems like a waste of time and effort. Especially if it's a big company, they will have the legal resources to fight it to the death. I don't see any discriminating violations in your description.

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