By Brenda Baumgart
Daily Record Newswire
With the recession came a prolonged period of advising employers through reductions in force, furloughs, work share programs and the like. But as the economy begins to stabilize, and some say the tide seems to have turned, fewer callers are seeking such counsel, and employers are hiring again.
Many employers are breathing a collective sigh of relief for having weathered one of the most challenging times in recent history; however, many are emerging with a very different post-recession workforce or corporate structure, and embracing other nuances of today’s job market.
There is buzz about what, exactly, will define the post-recession job market, and employee retention and recruitment processes are fluid concepts as employers move forward with hiring. So, while the “what” and “how” remain to be seen, there is no doubt that employers need to be smart about hiring in the upturn. This is particularly important to employers who are hiring in the wake of a prior reduction in force.
Just as employers undertook significant and well-planned efforts in downsizing or implementing other cost savings measures to achieve their necessary goals while minimizing legal risk, it is prudent to devote similar efforts when returning people to work — whether reemploying previously displaced workers, or bringing on new hires altogether.
Federal and state employment discrimination laws apply just the same to the beginning of the employment relationship as they do to the end. While selecting which employees to bring into an organization may seemingly not pose as great a risk as previous downsizing decisions, employers should anticipate such decisions will be subject to close scrutiny in the post-recession climate.
There are still many more job seekers than positions available, so the pool of unsuccessful applicants is not so unlike the pool of employees selected for layoff. Accordingly, some helpful hiring considerations, particularly in a post-RIF situation, include the following.
As a threshold analysis, employers need to ensure their hiring decisions do not run afoul of protected EEO criteria or otherwise indicate unlawful bias. This is of particular concern if an employer is hiring a replacement worker within a year of the downsizing event (e.g., within the generally applicable statute of limitations period), absent extraordinary circumstances.
By way of example, if the group of workers selected for a prior involuntary layoff included those over age 40, yet all replacement employees are younger than the protected age class, the employer would need to make certain there was no actual or perceived age bias. As a corollary, employers may want to revisit any pre-RIF diversity commitments to ensure new hiring efforts reflect those goals.
Employers need to review the prior exit process — that is, what was said to employees on the way out the door, both in writing and orally. If separation agreements were utilized, they should be reviewed to ensure employers didn’t make any promises they can no longer keep. Apart from any written agreement, employers should know what supervisors said to exiting employees.
Workforce reductions are often highly emotional for all involved, and it is not out of the question that a supervisor may have broken from protocol and made oral representations, such as promising to first call the employee should any positions reopen. It is safe to assume that former employees most definitely will be checking their prior company’s job postings. If an employer (or someone on an employer’s behalf) did create such expectations with departing employees, it is prudent to honor those representations or be prepared with a legitimate, non-discriminatory reason for not doing so.
For employers with a union workforce, there are obviously special considerations. Layoffs need to comply with the terms of the applicable collective bargaining agreement, and it is equally important to ensure any required compliance regarding recall or other preferential rights to apply for any new openings.
One class of displaced workers easily overlooked when companies are rehiring are those whose jobs were eliminated when they were off work on protected leave, such as for pregnancy, parental or family medical leave, workers’ compensation leave, or military leave. Employers need to be mindful of any continuing reinstatement rights such persons may have, including the right to return to alternate jobs if their former jobs have been eliminated. Most reinstatement rights are conditioned on the alternate jobs being vacant, which may be the case.
As a final thought, just as transparent communication with employees went a long way to ease anxiety through the tough times, the same is true when the employer begins to replace previously eliminated positions. Retaining happy and productive employees is an integral component in moving forward successfully.
In approaching what is anticipated to be the post-recession hiring wave, maintaining analysis and considerations similar to those used when downsizing will help employers ensure their hiring decisions do not expose them to legal liability in this unique climate.
Brenda Baumgart, an attorney with Barran Liebman LLP, specializes in employment litigation and employer-related advice. Contact her at 503-276-2132 or at bbaumgart@barran.com.
