As many states receive clearance for employees to return to the workplace, employers may be asking questions related to hiring considerations that have compliance impact. Always consult your legal team for advice, but here are some important considerations beyond the health and safety concerns.
What are rehiring considerations for previous employees
It’s critical to consider the risks with your legal team and carefully follow good practices. While some state laws may address this situation generally, employers are at liberty to hire selectively with some caveats.
Employers should review their policies and follow them to the extent that they address layoffs and recalls. For example, some employers may have policies that require giving preferential treatment to previous employees.
Employers should also be careful to avoid the risk of wrongful termination or discrimination based on a protected class. Pay attention to your selection process to ensure that your criteria would withstand legal scrutiny and that the requirements are applied consistently.
Another way to mitigate risk is to review all communications that hiring managers had with former employees to confirm that commitments were not made that could have created a contractual obligation to hire back specific individuals.
Be sure to use fair, objective, and documented processes to determine which employees are rehired. Avoid making hiring decisions based on an employee’s previous salary because older employees tend to earn more than younger workers. If a performance-based strategy is used to determine who should be rehired, it’s important to rely on unbiased criteria and memorialize the process involved in making those decisions.
Note: If your organization has a unionized workforce, then you should refer to your Collective Bargaining Agreement (CBA) and comply with requirements dictated by the NLRB (National Labor Relations Board) when it’s time to rehire or recall employees from furlough.
How to manage Form I-9s
Employees who were temporarily furloughed do not need to complete a new Form I-9 as long as they were not terminated and rehired.
For employers who have implemented the remote verification process outlined by the USCIS, any Form I-9s for new employees who were hired during COVID-19 should now be updated. Documents presented to confirm legal employment status should be reviewed in person, and the original Form I-9 should be updated, dated, and initialed. For more details, refer to our previous blog post on this topic.
