In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory.  If the same employers recall or rehire employees en masse, they will continue to avoid such decisions.  But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others?  Such choices can give rise discrimination claims.  To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.

The traditional selection criteria for layoffs and recalls, commonly specified in collective bargaining agreements, are seniority and ability to perform the job.  In a case alleging intentional discrimination, choosing the most senior qualified employee for recall is likely to accepted as a non-discriminatory explanation. Seniority systems can have an adverse impact on groups that were subject to exclusion in the past; however, it is not discriminatory to follow a bona fide seniority system.  To be considered a “bona fide seniority system” the system must give primary weight to seniority, be communicated to affected employees and be consistently applied.  Nor is it discriminatory to follow a seniority system if it has no adverse impact on any protected group.

Many employers believe that seniority should not be a controlling factor, because length of service does not necessarily correlate with employees’ value to them.  Employer can choose employees for recall based on any non-discriminatory criteria, such as quality of work, quantity of work, attendance, job related skills, etc.  However, management’s subjective impressions about employees are vulnerable to attack on the grounds that they are based on negative stereotypes.  It is much safer to rely on performance appraisals that were based on objective criteria and documented.

In discrimination cases, performance appraisals are often attacked as subjective.  Before relying on past appraisals, it is wise to reexamine them to make sure they are based on objective, uniformly applied, standards.  A common problem with past performance appraisals is that they over-praise employees’ performance.  Rather than criticize an employee, the supervisor may have taken the easy way out.  If, later, the employer says that the appraisal was inflated, the conflict between the documentation and the employer’s current position will create issues that may not be resolvable without a trial.

Another common issue in recall situations is the employer’s desire to correct an unresolved and undocumented personnel problem (such as a difficult personality) by simply leaving an employee off the recall or rehire list  Generally speaking, recalls and rehires are not the best time to make up for lost opportunities to take corrective action.  And if an employee has taken FMLA or some other form of legally protective leave, not bringing the employee back can be attacked as retaliation.

In past downturns, when employers had more time to plan, it became a best practice to run an adverse impact analysis on major reduction in force decisions.  If the tentative decisions disproportionately affected a protected group, the employer could reexamine the selection criteria to make sure the decisions were defensible.  The same kind of analysis can be made before employers recall or rehire.  If the employer uses a lawyer to conduct the analysis, it may be protected from disclosure under attorney-client privilege.

We hope that the employers are able to quickly recall and rehire employees, but realistically, it may take a while in some industries.  When jobs come back, there is likely to be a surge of discrimination claims by workers who are left on the sideline.  Adopting a fair procedure for selecting employees is a good business practice and a good defense.