Board Converting News, May 18, 2020

Deciding Who To Bring Back To Work: Be Wary Of Discrimination Risks BY JOEL GREENWALD The laws are changing rapidly in the current pandemic/ crisis. Therefore, the legal issues discussed here are sub- ject to constant change. Consult with your counsel for advice.

dates, and demand for products or services may not yet be where it was a few months ago. For others, the pandemic has forced the realization that they can operate without certain employees or job functions. In making such deci- sions, companies should be aware that selecting certain employees to return to work—and not others—can carry discrimination risks. With a limited number of positions to fill, a company should think carefully about who it decides to bring back and about what factors go into making that decision. Imagine selecting someone who has no known health issues over someone that has a known medical condi- tion, or passing over someone older than 60 to rehire someone decades younger. Although these decisions by themselves may not be made for discriminatory rea- sons, a company could face legal claims if it is perceived as making decisions based on a protected class, such as

With more businesses around the US getting the go-ahead to open again, and as businesses plan for their own reopening and ramping back up, many employers will face the reality that they can’t bring back

Joel Greenwald

all their furloughed or laid-off employees. For example, a business’s operations may be limited by government man-

race, gender, religion, etc., under various federal and state discrimination laws, or if those decisions disproportionately impact certain protected classes. In deciding who to bring back to work, employers should have objective criteria such as seniority, documented past sales performance, or other factors that may further business goals. Companies should then apply these criteria across the board and properly document the selection pro- cess and decisions. The selection process doesn’t necessarily need to be rigid, but it does need to be based on a legitimate business reason that is not discriminatory. For example, a company may choose not to rehire more experienced employ- ees because it can no longer afford to pro- duce the product they had been working on. A decision such as this one should be carefully thought out and the business rea- sons for the decision should be well-docu- mented to show that it was based on op- erational needs, rather than, for example, the employees’ ages. Companies may also consider first asking employees whether they would like to come back, as some em- ployees may be reluctant or decline. Ultimately, companies will need to artic- ulate legitimate, non-discriminatory busi- ness reasons for their selection decisions, and ideally be able to provide the relevant documentation if needed as support. Re- hiring decisions involve many legal consid- erations, in addition to discrimination con- cerns. Consult experienced employment counsel about your rehiring plans and to ensure compliance with applicable laws. Reach Joel Greenwald at (845) 589- 9300 or

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May 18, 2020

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