RIF & Re-hire

WITracy

Due to a reduction in workforce, we recently eliminated one of five positions within our customer service department. All of the customer service representatives (CSRs) hold the same job description but are assigned to different clients. We used performance as the deciding factor on which person to terminate. She had been with us for 3 years and was performing on a below average basis since she was hired (which is documented in evaluations, customer complaints & prior disciplinary action). She is also in a protected class due to her age.

Now it seems that another CSR who is assigned to the same client that terminated CSR was, will be resigning. I am anticipating terminated CSR to request her job back and am not sure where we stand. Do we have any obligation to hire her back? Her position was JUST eliminated (Friday) so timing isn't good. Are there any risks to refusing to hire her back (based on performance) & filling the position with an outside applicant? Age did not have any part in our decision to eliminate her position and will not play a part in who we select to fill the now open postion. However, the chances of the new person being younger are good based on the position and applicant base we draw from.

Thoughts?

Gillian

This is a situation where you evaluate the risks, starting with the presumption that a jury would probably have a high degree of sentiment that you should have brought the person back. You seem to have the documentation of poor performance which would have ultimately led to termination, so one approach, the highest risk, would be to use that documentation as a reason not to rehire. If there is litigation after you do this, the quality of the documentation will be very important, especially if you hire a person under 40 as a replacement. If that is the case, the burden will shift to you to prove that you had a business related reason not to rehire the person. You do, of course, but a jury decides. A less risky approach would be to bring the person back, continue the documentation, and if performance doesn't change, terminate the person when the time arrives to do that. If you do that, though, the supervisor of this person and probably other employees will think that the company is nuts, so that should be part of the evaluation. You probably need to have a discussion among those involved, probably including your attorney, to discuss all the points before making a decision. This would be especially the case, if you think that the person will file a lawsuit.

Don D

I agree wholeheartedly with Gillian except for the suggestion that you may want to return her to work and continue to work with her and document and so forth. I think this might later be read by a jury as, "Well, you brought her back after the RIF, in spight of what you now claim were her deficiencies, so, she must have been a good worker, and the so-called deficiencies you now claim exhisted for 3 years must be imaginary." Wrong conclusion, but, nevertheless, the one they would arrive at. If your documentation is as good as you suggest, I would never bring her back merely on the prospect of avoiding a painful process she may invoke on you. Think of your customers and those who have complained and I think you have your answer. I would however, allow her to reapply and tell her her application will be evaluated along with others. Hopefully when you RIFfed her, you gave her the full-meal-deal about her performance so there will be no courtroom surprises when you restate them, not that it will come to that.