By: Deanna Hartley
Massive layoffs across industries invariably accompanied the recent economic woes; however, with the worst of the recession behind us, there is an uptick in employers beginning to rehire.
“Employers are looking to hire the best people, and they’re not necessarily considering some of the potential liability ramifications when they’re hiring back,” said Jeffrey Thurrell, partner in the law firm Fisher & Phillips.
One of the most significant liabilities plaguing companies these days is age claims, he explained.
“A lot of times in these layoffs, you might have an employer that has sort of picked and [chosen] and laid off a lot of more senior employees that might have been getting paid more,” Thurrell said. “Now that things are picking up and they need more bodies to do the work, one of the strategies and goals might be to hire people [who will] work for a lot less money and [who] are typically younger.”
This could pose a problem and could serve as evidence of age discrimination unless employers think and plan ahead strategically, Thurrell explained.
The first step would be to map out and identify who will be replacing the employees who were laid off.
“If it’s a straight rehire issue – where you have people that are laid off and you’re bringing those same people back – if you hire somebody back who has less seniority than somebody else who got laid off, you had better be able to articulate a legitimate reason as to why you hired that person back versus the person who had more seniority,” he said.
“For example, they had a better skill set; they were cross-trained; they had a higher level of education, which they needed for further growth within the company; they didn’t have performance problems that the person who was more senior had; [or] the person who was more senior had written documentation related to performance or conduct issues while the less senior person did not.”
It’s important for employers to be able to articulate more tangible strengths, such as the ones listed above, that would positively impact the business as opposed to something along the lines of , “This person has a better attitude.” This will help legitimize employers’ hiring decisions.
Additionally, employers ought to be aware of potential disability claims, which also appear to be prevalent during the rehiring process.
“If you have a reduction of force and you lay off 40 people and a couple of those people had multiple work comp injuries, and then you’re ready to hire back 35 people and the five people you don’t hire back happen to be [the individuals who] had a work comp injury or some sort of medical condition that required them to take extended leaves, for example, that could be a real problem,” Thurrell said.
While employers are trying to get back on their feet post-recession, they may have a hard time justifying rehiring individuals who, for instance, may have regularly missed time at work as a result of injuries – which could wind up affecting productivity – or who may have had workers’ compensation claim issues, Thurrell explained.
Even though this type of decision isn’t made with malicious intent, employers nonetheless need to exercise caution and think it through.