Forums
Layoffs
Legal Forum
Layoffs
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We are a small non-profit educ/training
agency. Due to some potential funding cuts we are looking at some layoffs at one site. What obligation ( if any ) do we have to hire staff back if the funding
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId17305
Forums » Topic Forums » Legal Forum » Layoffs
|
Layoffs
posted at 6/11/1999 4:23 AM EDT
|
Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
There may be an obligation if you'd made a promise of re-employment, completed an unemployment document with a return-to-work date, if your employees have a bargaining agreement that gives them recall rights, or if your state labor laws mandate it.
Other than that, you'd have no (other than a moral one, I guess) obligation, however let me throw in a "caveat": Let's say you have a "problem child" who was laid off, and the company doesn't want this person back, even though the employee's records don't reflect any difficulties. When you advertise, you are going to get your old people back, applying for the jobs they had or ones similar. You're going to need some compelling reasons for NOT rehiring, if the incumbent was in a protected class and the documentation won't deflect a prima facie case of discrimination. Nothing comes back to haunt an employer like using a downsizing to purge those that really should work there, but weren't evaluated or weren't evaluated straightforwardly. |
|
|
Layoffs
posted at 6/11/1999 8:31 PM EDT
|
|
Posts: 38
First: 6/9/1999 Last: 10/26/2004 |
Let me just add an echo to Jim's comments.
Absent a contractual obligation to do so, an employer need not hire or rehire any particular person for any particular job. In any state which follows the Employment at Will rule (EAW), an employer can refuse to rehire an employee for a good reason, a bad reason or no reason at all so long as it is not an illegal reason or in breach of contract. (We have previously provided a list of illegal reasons and I will reprint it below.) As a practical matter, however, because it is so easy to file a lawsuit claiming "discrimination" on some basis, an employer would be well advised to treat every employee or applicant as a potential plaintiff. What does this mean? Well, simply speaking, make sure you have a reason for the action you are taking. Make sure that if put to the test of showing why you did what you did, you had a good excuse for it. In your case, if you have to lay-off workers who have worked for your company and already understand your business, why did you hire people "off the street" before offering your former employees their jobs back? A jury or judge would want to know the answer to this question and you would be wise to have an answer (a truthful one) before deciding to take the action in the first place. |
|
|
Layoffs
posted at 6/11/1999 8:37 PM EDT
|
|
Posts: 38
First: 6/9/1999 Last: 10/26/2004 |
As we have previously noted, the Employment at Will rule (EAW) means that an employer can fire, or refuse to hire, or discipline, or demote (and so on) an employee for a good reason, a bad reason reason or no reason at all so long as it is not an illegal reason or in breach of a contract. What illegal reasons/breach of contract claims could an employee bring? Here is a partial list or possible claims (depending on state law):
(1) In breach of a contract (where the contract is expressed, mplied, written or oral, depending on each state's law); (2) In violation of an anti-discrimination statute (federal, state or local) based on race, color, religion, sex, national origin, sexual orientation, age, disability, veterans' status, marital states, height, weight, union affiliation, and political affiliation or activities; (3) Because of the employee's lawful off-duty conduct or lawful use of a consumable product; (4) Because of an employee's lawful expression of first amendment rights; (5) For refusing to take or on the basis of the results of (under designated circumstances) a polygraph; (6) Under circumstances which would be contrary to public policy; (7) On the basis of genetic tests or genetic predisposition; (8) Without giving required notice of a plant closing or mass layoff; (9) In violation of family or parental leave statutes; (10) In order to prevent an employee from becoming vested in a covered benefit plan; (11) In retaliation for exercising any of these rights; or (12) Under circumstances which would violate any state laws requiring discharge for cause. When we examine the ever expanding "list of illegal reasons" under which an employee can challenge an employment decision, we quickly see why no employer can consider itself "safe" from litigation. |
|
|
Layoffs
posted at 6/15/1999 12:00 AM EDT
|
|
Posts: 3
First: 6/10/1999 Last: 6/15/1999 |
Thanks for replying to my question.. It is the "problem child" in questions..although there were also two others...it is the nature of our buisness that contracts are not awarded until July 1... and there is usually some " downtime".. some of the sites can sustain themselves through it and we don't have to lay any one off... In the case of the " pc " there is fortunately enough documentation in the file to back up a decision not to "rehire".. and a performance eval. will be done before she leaves which will also lend credance to the decision. ( and I surely hope that I'm right....because something tells me this one is not going to go away quietly) |
Forums » Topic Forums » Legal Forum » Layoffs
