As businesses slowly resume normal operations and the economy gradually recovers in the wake of COVID-19, many companies will experience increased demand, which translates into an increased need for labor. To meet demand, companies are likely to recall employees that were furloughed or rehire those who were laid off during the pandemic. Companies should observe the following practices during the recall and/or rehiring process to avoid potential liability for claims of discrimination by employees who are not asked to return to their positions.
When recalling or rehiring employees, companies should follow any protocols that are already in place, such as an internal return to work policy or a collective bargaining agreement. If a company plans to recall or rehire only some of their employees that were furloughed or laid off due to COVID-19 or the resulting economic crisis, it is imperative that the company have objective criteria in place to determine which employees will be recalled or rehired. Employers should look first to their internal employee handbook and return to work policy. If a company’s rehiring/recalling decisions are challenged by an employee on the basis of discrimination or similar claim, it is critical that an employer can show that they adhered to a standard, objective policy governing its rehiring/recalling practices, and that each decision was made in a fair and non-discriminatory manner. A unionized company must adhere to its collective bargaining agreement and any controlling provisions contained therein, such as a return to work policy or parameters governing the rehire or recall of employees. If no such policy exists, it is imperative that the employer develops and adheres to one. The following criteria should be considered when developing a policy governing the decision-making process for recalling/rehiring employees:
Which jobs are currently necessary, and which are not?
If the pandemic or economic collapse changed the landscape or daily operations of the business, some roles that were previously necessary may have become obsolete as a result, and some marginal roles may not be critical enough to reestablish.
Do some employees need to return to work first?
Employees may need to return to mirror the business’ order of operation, i.e., the return of IT or maintenance employees before those involved in other areas of the business.
Which skills are immediately valuable to you and which employees possess those skills?
Employees with skills critical to business operation may be valued over other employees, and employees with diverse skill sets may be used to fill more than one role, reducing the number of employees rehired or recalled.
What metrics will you use to measure past performance?
There should be a clear and consistent standard to determine which employees are asked to return to work. For instance, one could rely on past employee evaluations or performance. Employers should avoid nebulous or subjective measures whenever possible.
Are there any factors that will be prioritized?
For example, a company could rely on seniority or job description to determine which employees are rehired or recalled, and certain factors could be used as a tiebreaker, so to speak, all other things being equal.
Will some employees not be asked to return to work and, if so, why not?
This is critical. If a company decides that an employee will not be rehired or recalled, the company must document the reasoning behind its decision.
It is critical that an employer clearly documents its reasoning and the decision-making process used to determine which employees are asked to return to work and which are not. The way these decisions are made could have serious ramifications on employee morale or subject the employer to potential discrimination claims. If an employee brings a discrimination claim based on the company’s rehiring or recalling practices, a company that can point to thorough records of their policy and processes will likely receive the benefit of the doubt regarding good faith practices. The rehiring or recalling process should reflect a fair, consistent policy that will minimize employer liability in case of a claim. If your company needs help navigating the potential pitfalls and landmines of rehiring or recalling your employees, do not hesitate to contact Kuiper Law Firm PLLC to discuss how we may be able to assist you.
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