Rehire layoff vs new employee

dmartenson

The owner of my company recently "laid-off" an employee that he really wanted to terminate. He did not want to "hurt her feelings". Can we replace the laid-off employee with a new employee for the same position? Or are we required by any law to recall the original employee?

Down_the_Middle

Assuming there's no labor agreement or written document that governed the lay-off, you're probably free to hire another person. The only down-side is that your "survivor employees" will likely translate this into "lay-off means never being recalled" and that might not serve you well. It's unfortunate when RIF is chosen as a substitute to handling poor performance, but if this is a small organization, there's probably no issue here. While it's arguably not the right thing to do, I don't think it's illegal at face value.

WT

Firing can lead to grievances in a union environment and messy lawsuits in nonunion places of employment. A laid off employee typically receives unemployment which softens the blow of being let go. Laying an employee off can be an easier way to go than firing. However, if there is an immediate replacement, a claim of constructive discharge can be made so liability for lawsuits may still exist. The theory behind layoff is that the employee is not needed. It may be a good idea to try and get along without the employee for at least a few months (if you can).

JJ

I face these phony RIF requests from kind-hearted department managers quite often. Another downside to not being honest with the employee is that if you replace the employee with someone of another race, gender, younger age or other legally protected status. You might face an employment discrimination complaint with EEOC, the state or local Human Rights Commission (or OFCCP if you are a government contractor) or a lawsuit. It is difficult to convince them that the real reason for termination was poor performance after you have told the employee that it is a lay-off.

Gar

In another HR assignment I faced similar situations with lazy and kind supervisors who did not document. As mentioned in the other posts, there is the risk of legal claims. The best thing to do going forward is to remind supervisors of their responsibity to document. More than anything else, its fair to employees.

Carol CA

I would echo the above and reiterate the suggestion to wait if possible. If you turn around and hire someone else right away, the RIF was obviously subterfuge and you risk a lawsuit. If you wait for a while then you might be able to justify a "change is businss" and the need for that position again.

Making the supervisor wait a while for a replacement might also help teach them the lesson that they need to document and be honest when letting someone go. They will be sure to do better the next time.