Friday, November 16, 2007

 

Hell Hath No Fury

A new correspondent writes:

I am a Department Head for a large urban CC in a very small vocational program.
Seven years ago I hired a friend who was well qualified for the
Instructional Aide position (part of our FT faculty bargaining unit).
She came to me this week to let me know she is leaving at the
beginning of the Spring semester (January 11th).

As FT faculty we sign a contract that extends until August 31st. I am
also part of the FT unit and I work closely with the Administration.
My Dean is going over with the college's legal counsel if there is
any way we can stop her.

This is a busy time for our department. We are under review for our
national accreditation and since we are so small, losing her will be a
huge hit for our program.

But she is my friend, it is difficult for me to keep this from her but
my Dean has asked me to keep it quiet. She is also under the
impression that she will be able to teach for the college part time,
but again the administration along with myself are so upset with her
decision to leave it is unlikely she would be brought back as an
adjunct even if we need her. I feel an obligation to tell her but
again I am upset with her short notice decision.

What can a college do to someone who breaks their contract?

Any other thoughts would be appreciated.



I don't mean this to be flippant, but my knee-jerk response is "nothing." (That said, I'm neither a lawyer nor an HR person. I've actually put in a call to Evil HR Lady to see if she has something to say on this.) You can stop paying her when she stops working, and you can refuse to rehire her if you so desire -- though I personally think it makes you look petty -- but I don't think you can force her to work for you if she doesn't want to.

(As a manager of people, I can tell you that the last thing you want is an employee who doesn't want to be there. Even if it appears to solve an immediate crisis, the environment will become toxic quickly. She'll take every sick day, every vacation day, every personal day, every holiday, and every opportunity to exploit every little grievance and blind spot in the contract. She'll make your life miserable. After all, what are you going to do -- fire her? Then she gets what she wanted in the first place! Even if you 'win,' you lose.)

You mention 'short notice,' but I can't help but notice that she has given you at least two months. In any other industry, that would be considered generous.

My cc, like yours and like most others I've seen, issues annual contracts for employees (including tenured faculty, since their salaries change each year). The contracts typically renew sometime in the summer, to reflect the academic (as opposed to calendar) year. But it's not at all unusual for people in non-faculty roles to leave at any time of year. (When faculty leave, which is rare, it's usually in the summer.) This is true at all tiers of administration, right up to the top. If that weren't the case, there wouldn't be any administrative job ads in the Chronicle until about April.

In my neck of the academic woods -- and I'll admit, this may be different in the elite, monied tiers -- 'noncompete' clauses don't exist. If anything, shopping around for other offers is tacitly rewarded, to the extent that the only way to get a job 'reclassed' is to come in with a better offer.

It seems to me -- and I'm basing this only on what you've written -- that you and your administration are acting out of hurt, fear, and spite. You're upset that your friend is leaving just when your program needs her, and you're looking for legal ways to lash out at her to punish her.

Spite is a vice of the weak. As a manager, you have to be able to put it aside. She has found another path. You just have to accept that and find another way to fill your program's needs. This may be an opportunity to look at the definition or payscale of the job. Has it fallen too far behind the market? Have the program's needs changed such that a slightly different definition of the job would be more helpful? If so, now's the time to address that, when it doesn't involve changing the terms and conditions of employment of an incumbent employee. This is a chance to redefine the position to more closely match current and/or projected needs, and then to recruit some new talent.

My advice? Swallow your hurt, call off the lawyers, wish her well, and start thinking about the future. You'll save time and money, a friendship, and your program.

Wise and worldly readers -- your thoughts?

Have a question? Ask the Administrator at deandad (at) gmail (dot) com.


Comments:
Dean Dad got it mostly right - these types of performance contracts only apply a specific 'industry.' If an athlete retires half way through a contract to take up music, there is nothing the team can do to stop him/her. If they later decide to unretire, then the player comes back under control of the original team. If they are want to play for another team, some type of trade or compensation has to be worked out. That's why contracts always have specific language defining what counts as service time.

Back to the original issue, you have no hope of even this level of influence, because, in all likelyhood, this clause has never been enforced before. Its almost certain to be considered abandoned and unenforceable.
 
As her manager, make sure you express the fact that your program needs her and that her absence will be a problem for your program.

I'd also ask if there is something you can do to make her want to stay, at least until the end of the academic year.

As her friend, you can urger her to talk to the dean about the implications of leaving. Let the dean handle the part-time teaching part.
 
OK, let me put my attorney hat on....

First, is there anything in the contract that covers termination by either side?

If not, then sadly, this is an employment at will situation, and there is nothing that can be done.
 
Hm , when does the college tell its employees whether they will get another contract? If this happens only in, say, June, then the college routinely gives just as 'short' notice as did this employee.
 
Evil HR Lady's response, via email:

First of all, I don't understand academia. Why on earth would you have "employment contracts" which only protect the employee? The fact that the question writer doesn't know what, if anything, can be "done" to stop the leaving employee and he has the same contract, means that the contract is incredibly one sided--we can't fire you until August, but you can leave any time you want! I don't know if that's standard in academia, but it seems awfully foolish to me.

If you want to guarantee someone's appearance for an entire school year, the consequences of leaving need to be spelled out in the contract. (You will have to pay X% of your salary, your pension will be canceled and we reserve the right to toilet paper your house.) If the contract merely states, "you have a job until August unless you commit gross misconduct (please tell me that's included), then you are right--out of luck.

Second, some other things jump out at me. First "friend." Companies gets tons of referrals from current employees and that is great. "Friends" however, make me leery. Emotions tend to run deeper and flaws are either ignored or people feel hurt when someone resigns. We're grown ups here. People should be able to resign without having other people get "angry."

Third, gender. I know, I know, I'm a biased HR person, but a woman that wants to leave mid contract and then wants to work as an adjunct just screams work-life-balance issues. Is she pregnant? Does she have young children? Has her husband just been moved to a new, more demanding job? (I could be wrong, on this, of course. She could be a childless, 60 year old spinster with 14 cats. Boy, am I going to stereotype hell today or what?)

The fact that she wants to work as an adjunct suggests to me (although I could be wrong) that it isn't that she's got another job lined up. It's just that she wants to work less. If she's good at what she does, why on earth would you throw that away? Because you're angry? Let her adjunct next semester. At least some of her duties will be covered by someone who knows what she is doing. Let go of the anger. You can't do anything about it anyway.

- Thanks, EHRL!
 
Um...she's been there SEVEN years and she's given two months notice? That seems really good to me. She's given many years of (presumably good) service to the department, and she'd like to change roles. (New job, or just less work.) You should be glad that she's been so good.

It's not her problem that this is a bad time. For whatever reason, something in HER life calls for a change.

As for the contract, when I was an admin exempt CC employee, we had an annual contract, but it basically just meant that they were promising this wage in this job for this year. Either end could call it off at any time.

And I did...about this time last year, in the middle of my "contract." I use scare-quotes because I find it absurd -- it didn't guarantee anything, and at least once I got my contract to sign after the supposed start date.

Also, if she's that great that you can't do without her, why would you risk getting lawyers involved, pissing her off, etc.? WTF?

This is apparently the anger/denial phase of grieving for the loss of a valued colleague & friend. Please don't get stuck here.
 
In a previous, administrative job, I was covered by a similar "contract" in that I and my colleagues were expected not to search for other jobs unless those other jobs would start just at the beginning of the fall semester. So if I'd been searching but hadn't landed a job by, say, June, I was expected just to give up and stop searching again until the following spring out of loyalty to my department. (A loyalty that was paid back in micromanagement, disciplinary letters that flowed like water, and crazy decision making. But that's another story.)

The expectation that in a tight job market I should only job search for about three or four months a year was ludicrous and unenforceable. All these "contracts" did was create a situation where nobody could be open about their job search, and therefore people would suddenly move away a month or so after getting an offer.

The original poster's question seems to imply a somewhat similar scenario. If your employee's contract ends on August 31st, is she expected to only search for other jobs that would begin on September 1st, or to leave employment at that time without a job and face what could be a very long period of unemployment? This doesn't sound like very generous compensation for seven years' of service. And the overall situation doesn't speak of much consideration of her professional or personal needs.
 
I think you're quite right, DD. Two months is a pretty generous advance notice- enough time to conduct a search for a replacement if you hurry (and stop wasting time trying to be punitive and malicious).

Also, the letter writer says her friend was hired seven years ago- this indicates to me that the friend has put a lot into the department and made a contribution, but the writer is not giving her any credit for this at all.
 
So after seven years of loyalty and dedication to your department, she is supposed to continue to place that loyalty and dedication to what is honestly, just a job, above her loyalty and dedication to a new pregnancy, a recently diagnosed chronic illness, a sick or aging parent, a sibling in crisis, a special needs child, a husband who needs to transfer out of state or lose his job... The possibilities are endless, and not necesaarily your business. Do the classy thing. Wish her well and let her go. There's so much more to life than a job. After seven years of hard work, she "owes" you nothing other than sufficient notice, which she gave generously.
 
What a sick culture, that two months' notice on breaking a one year contract is a cause for any sort of hard feeling.
 
Most people have said varying iterations of what I will say, but this hits a lot of emotions I have about higher ed. Instructional Aide is not tenure track faculty with commitments to teach courses. It is a staff position, and like DD said, people change jobs ALL THE TIME. I understand why from an administrative role you would be disappointed to be SOL, but TWO MONTHS NOTICE??? That's forever by business-world standards. Higher ed is so ruled by fear of change that it is mind-boggling.

What I really don't understand is --why if this is the OP's "friend," the OP is so unsupportive of said friend's decision to make a life change. To me this doesn't mean friend. It means "acquaintance that I recommended for a job" or "personally acquainted colleague." To me, friends are supportive of decisions to change job roles, even when it is in conflict to professional roles.

Having worked at a state institution previously, my understanding of the annual contract was that it signified that the state had earmarked money to pay you for a year. I never saw a new contract prior to the expiration of the old one while I was there. I understood that I or the state could end the agreement if the situation wasn't working out. (which I see is exactly what former cc employee understood as well.)

My advice that I have not seen yet is this: MAKE HER AN OFFER SHE CAN'T REFUSE. People like to stay where they are comfortable. If it's about money, you can petition to change her rank and salary. If it's about flexibility--can her hours be modified? Can she telecommute for some tasks? If it's about a more systemic problem--can the organization work at addressing the issues in a timely manner? If it's about opportunity, refer back to suggestion one--can you look at modifying job responsibilities? If it's about making time for family, can her job be downsized and targeted to the tasks most essential to the upcoming accreditation?

Someone giving two months notice is not necessarily miserable. They may just need incentive. The incentives required may not necessarily be financial.
 
I'm with the rest -- trying to retain her (and bringing in the lawyers all stealthy-like) will only backfire. Plus, word will get around that you guys are nasty to work for if you ever want to leave (the "Hotel California" of academe).

Talk to her. Express again how much it will hurt to lose her but understand she might not want to stay. Ask her what HER suggestions are for filling that gap with certification coming along. Maybe she has a former student who's come through the program and would be good to take up the reins. Maybe she can, on a part-time basis in future, consult to help fill in the gaps.

But, whatever you do, don't be an asshole which is what the rest of the admin is trying to get you to do (hide their plans to sue her!).
 
There is some legal principle, with a catchy phrase that I can't remember, that basically says you can't have slave contracts. No person can be obligated to come to work. The contract can spell out other consequences, such as loss of pay for the time not worked, or loss of vesting in some benefits, etc., but you can't compel someone to come to work.

A hearty "hear hear!" to the suggestion that you thank her for her years of good service, ask her help in thinking about a replacement, and leave the lawyers out of it.
 
Yes, you should not harbor any hard feelings toward her, and yes, you should refrain from telling her any insider information from you dean.
 
Bailey v. Alabama
Thirteenth Amendment

Case closed. Court adjourned.

a legalistic Mighty Favog
 
I want to second (third? fourth?) what others have said about how you don't want an employee working for you who doesn't want to be there. They can do A LOT of damage. As hard as it may be to have her position empty, that's the better option compared with having a disgruntled "short timer."

I would put aside all the "but I'm her friend" feelings. This particular situation is about her being your employee, nothing more.

This too shall pass. Good luck.
 
Dear Correspondent:

You're a grade A a**hole.

First problem: friends before work. Always. Either you're lying about her being a friend, or see the opening sentence.

Second problem: if I ever heard a whiff of this, I'd make sure that nobody I know ever works for you.

Best,

Earl
 
Here's another angle: Figure out how you and your dean can use this situation to your advantage.

If your program is running so close to the edge that the loss of one instructional aid is enough to endanger your accreditation, you're running too close to the edge. Explain the current situation to your president. Use this as an argument to add faculty, to add staff, to add enough funding to your budget that you can keep people there or even lure them from other schools. The recent events could be a blessing in disguise if you can spin them right.

The potential loss of accreditation should be ammunition that will catch and hold a presidents' attention.

The problem here is not your soon-to-be-former-employee, or even your attitude or the dean's, but something about the environment as a whole. If you can take a moment to breathe deeply and reflect, you can figure out what it is. And then you can make it better.
 
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