Avoiding Discrimination When Bringing Back Employees

Photo courtesy of The Independent

A recent statistic noted a significant uptick in age-discrimination claims over the past 3 months due to former employees not being “recalled” and being confused as to why. 

Law 

Federal, state and local law prohibits employee discrimination during the hiring and re-hiring processes on the basis of membership in a protected class, which includes: age, race, color, national origin, sex/gender, disability and religion. Contrary to popular belief, if an employee was terminated, they do have a future claim if they are not rehired. Although it is legal for employers to not recall or hire employees, their decision to do so must be based on legitimate, non-discriminatory reasons; these reasons can include factors such as: seniority, operational needs, or past performance issues. 

What Should Employers Do, and Remember, Now:

Employers should document their decision-making process before recalling or hiring employees. 

1. Employers should create a list of employees by job title, seniority and age. 
2. Employers should use the same factors for both the termination decision and the rehiring decision.

a.                   This will prove that both the rehiring decision and the original termination decision were based on legitimate, non-discriminatory factors. Again, these factors can include seniority, skill set and positions needed amongst others. 

1. Employers should pay particular attention to past performance issues. 

.                     If employers decide not to rehire an older employee due to legitimate, past performance issues, but they do not have adequate documentation, they may have a more difficult time defending an age discrimination suit. 

a.                   It is best to deal with performance issues in the moment – i.e. disciplining or terminating an employee in close proximity to the problem. 

1. Employers should ask themselves these key questions when making their rehiring decisions:

.                     What are the reasons for those decisions? 

a.                   Are those decisions motivated by legitimate, non-discriminatory business reasons? 

b.                   What are those motives? 

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