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Keep full records on length of try-out stints

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in Discrimination and Harassment,Human Resources

Some employers prefer to offer employees a trial run before making a new promotion official. They reason that this gives employees a chance to show they can do the job and management a chance to evaluate the match.

There’s a danger, though: If you end up keeping the employee on “training” status longer than you did others who don’t share his protected class, he may claim discrimination. Therefore, make sure you can explain why he needed more time.

Recent case: Timothy Blue, who is black, worked for Dunn Construction. He was eager to move up and was selected for a foreman position. Dunn had a training program that let employees try out positions to see if they were suited to the job.

During the trial period, new foremen were paid by the hour and received overtime. Once they moved into permanent status, they became salaried exempt employees. As a result, trial foremen could sometimes earn more than permanent foremen.

Blue spent 15 months on trial status before he was officially promoted. He complained that two others, who were white, got their official promotions months earlier. Blue sued.

Dunn Construction explained to the court why Blue’s trial took 15 months. His supervisor had detailed training records and testing scores that clearly showed the others were promoted sooner because they scored higher and mastered the job faster. That was enough for the court to toss out the case.

The judges also noted that Blue lost nothing by being held back longer, since he actually earned more on trial than he did later, after the promotion went through. (Blue v. Dunn Construction, No. 10-14345, 11th Cir., 2011)

Final note: Documentation is the key to winning many lawsuits. Don’t neglect this essential step.

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