The COVID-19 pandemic, and subsequent business shutdowns, impacted different companies in different ways. Many businesses weathered the storm without any reduction to their payroll, in some cases through the support of PPP loans or other government relief programs. But not all businesses were so lucky; many had to make tough decisions and to lay off members of their teams.
Now that most businesses have reopened, there is a pressing need to staff up and ensure a robust workforce. For some companies, this will mean inviting some of those laid off (or furloughed) employees back to the team. In doing so, a number of strategic considerations must be met.
Strategic Considerations for Rehiring
In an ideal world, your company will be able to welcome back its entire workforce, including all employees who were either laid off or furloughed. If this is the case, then rehiring can be fairly straightforward.
But what if you simply don’t have the customer volume or the cash flow to bring everyone back? If that’s the case, then some tough decisions must be made about which employees return and which don’t. A key consideration here will be ensuring that your decisions are not made on the basis of wrongful discrimination.
When you make the decision to rehire an employee, it’s critical that you have valid and non-discriminatory reasoning for choosing that person over others. There are a number of perfectly legitimate examples of this, including:
- Making your rehiring decisions strictly on the basis of seniority
- Making your rehiring decisions based on operational need (for example, if you have two positions that are somewhat overlapping or redundant, you may decide you just need to rehire for one of them)
- Choosing not to rehire someone based on past performance issues (assuming you have HR documentation to back you up)
One important step is to document your reasoning before you actually invite anyone back to the workforce; make sure you have a written rehiring strategy in place. This will give you legal cover if an employee alleges that your rehiring decisions were made frivolously, or that you only made up your rationale after the fact.
Generally speaking, rehiring on the basis of seniority is the best move from a risk management standpoint. There are, however, exceptions. If your most senior employee is someone who holds a more ancillary role, you may need to move past them to employees whose role is more operationally critical. (For example, if you own a restaurant, you need to rehire your cooks, even if they don’t happen to be your most senior employees.)
One final note is that, if you laid off or furloughed employees for a specific reason, it’s usually best to make that your reasoning for rehiring. For example, if seniority was your guiding principle in who to furlough, it should probably be your guiding principle in rehiring.
A Word of Caution
One thing employers shouldn’t do is base their rehiring decisions on high risk of COVID-19. For example, you may be tempted to avoid or postpone the rehiring of team members who are 65+, or who are pregnant, on the grounds that they are the ones most likely to be infected by the coronavirus. But actually, this rationale is not approved by EEOC guidelines, and can run you into some legal risks.
Do you have any additional questions about rehiring post-pandemic, or about how to minimize legal risk as you bring back employees? Reach out to FullHR at your earliest convenience. We’d love to talk with you further about rehiring strategy or other HR needs.