The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.

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 all their furloughed or laid-off employees. For example, a business’s operations may be limited by government mandates, 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 decisions, 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 condition, or passing over someone older than 60 to rehire someone decades younger. Although these decisions by themselves may not be made for discriminatory reasons, a company could face legal claims if it is perceived as making decisions based on a protected class, such as 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 process 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 employees because it can no longer afford to produce the product they had been working on. A decision such as this one should be carefully thought out and the business reasons for the decision should be well-documented to show that it was based on operational needs, rather than, for example, the employees’ ages. Companies may also consider first asking employees whether they would like to come back, as some employees may be reluctant or decline.

Ultimately, companies will need to articulate legitimate, non-discriminatory business reasons for their selection decisions, and ideally be able to provide the relevant documentation if needed as support. Rehiring decisions involve many legal considerations, in addition to discrimination concerns. Consider consulting experienced employment counsel about your rehiring plans and to ensure compliance with relevant applicable laws.