C. Promotions, Demotions And Related Concerns

Private employers are generally free to decide when to give promotions and raises. A common obstacle appears to be in situations where a union member believes he/she was not promoted in violation of pertinent provisions contained in a collective bargaining agreement. Even here, arbitrators will not overrule management unless it can be proven that the employer violated a union pact or acted in an arbitrary manner. For example, some union contracts specifically bar discrimination against any employee because of union membership or non-membership. If a supervisor refused to recommend a worker to a higher position solely because of a union affiliation, this would violate the agreement.

When there is no contract provision at all limiting the company's rights in selecting employees for promotion, a company's rights are unlimited and it may be free to ignore seniority even on the basis of skill, ability and physical fitness. But this is not recommended as discussed in the tip. And, absent limitations in union contracts, companies are generally free to change job classifications, job duties, eliminate jobs and create new job classifications.

TIP: Your company may be violating federal and state discrimination laws if a member of a protected class, such as a worker over 40 with more seniority and ability, is denied the same promotions and raise opportunities given to a (younger) non-minority member.

Counsel Comment #95: To minimize breach of contract claims, avoid making specific promises in company handbooks, job interviews and employment contracts which guarantee or commit your company to pay specified bonuses and promotions, unless this is your intention.

As for bonuses, the sum must be ascertainable and courts will not guess at amounts. Thus, all personnel in charge of hiring must be instructed not to make specific promises regarding the timing or amount of bonuses or raises and to understand the distinction between discretionary bonuses, advances and promotions and the types of promises that may be specific and definite enough to be enforceable by contract.

Non-Monetary Promotions

Experts recommend several effective employee retention strategies when promotions or salary leaps are not possible for an employee. In such instances, you may wish to:

• Heighten the employee's stature in the company by widening the area of responsibility. This is a "promotion" without the title.
• Assign new projects that involve more creativity.
• Eliminate menial parts of the job; for example, have the paperwork done by an assistant.
• Involve employees in enhanced decision-making, not just window dressing.

When do additional job duties justify a pay increase? Typically, unions file grievances on behalf of members seeking extra pay when extra work is imposed on union members. When a company adds tasks to a job classification under a collective bargaining agreement, arbitrators generally consider two issues when asked to increase the workers' compensation: (1) whether the tasks require a higher level of skill than the work already performed; and (2) whether these new tasks require a significant percentage of the employee's time to perform. If the answer to both questions is "yes," additional compensation may be warranted.

Demotions

In directing the work force, an employer generally has the right to demote workers at will. A worker is responsible for keeping up his standard of performance no matter how long he has been with the company. Demotion for sub-par performance is not so much disci- pline as it is a transfer to a job more suitable to an employee's ability and companies can force an unwilling employee to accept a new job or risk discharge.

TIP: An exception to this rule may depend on the existence of a collective bargaining agreement. Even so, unions do not have the upper hand in prohibiting employers from changing or issuing new rules, although they can request that an employer justify the reasonableness of its demotion rules.

Downgrading or abolishing a job will often be upheld by arbitrators where genuine changes at a company, including a business downturn, increased mechanization or a shortage of materials, account for such a move. Also, depending on the facts, a reduction in pay may not be a compelling reason to refuse work and employees who have been laid off for a period of time cannot require that they return to jobs that pay exactly what they received previously.