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As we continue through the COVID-19 crisis, we are seeing a light at the end of the tunnel.  Clearly, we are not out of the woods, but it seems very possible that by June 1st, many companies will be bringing people back to work.

If your organization implemented a furlough, hopefully you worked through this process and laid off those non-essential employees and furloughed the rest. You than bring back all those who were furloughed.

Now, for those employees you laid off, a decision needs to be made as to how many, if any, people you will bring back based on your company’s financial situation.

Hopefully, if you laid off only a portion of your workforce, you used a selection criteria that would not raise any red flags of discrimination. Now, let’s focus on ramping back up.

First, you need to list all the essential roles you will need in order to bring your company back to profitability. If you cannot afford to bring all of your laid off workers back, you will need to develop a criteria for whom you rehire. It might be based on seniority or the employee’s latest performance review. Or perhaps it will be based on the skills employees have in areas you have deemed critical to your organization’s success in the post-COVID-19 world.

You need to understand that the more objective the selection criteria, the more defensible they are if later challenged in court.

If an employer relies on performance-based criteria in selecting who will be rehired, it should minimize the level of subjectivity. For example, performance-based criteria that account for objective sales targets or other objective performance metrics are easier to defend in court than performance-based criteria that consider only managers’ opinions.

If managers’ opinions are factored into the decisions to rehire employees after a layoff, their opinions should be supported by documentation, such as performance evaluations, sales records, etc.

If your company does not use performance reviews, than a process that can easily be understood as fair by an outside third party should be constructed. Ranking employees from 1 to 10 using all the criteria the employer has, such as attendance records, critical skills, and the ability to perform different functions should be utilized.

Please consider using the services of an outside HR consultant before doing something that could expose your organization to potential litigation.

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