ADA

Cotterwood

During a Local HR group meeting the other day, one of the attendees posed a question that got different responses. I'd love to get your responses to the following:

A company has a policy that when an employee leaves its employment - for whatever reason - the company will not re-hire them at a later date. The company just does not re-hire former employees.

That said, here's the scenario: An employee leaves the company to work elsewhere. Later on becomes disabled - not related to any work injury - just becomes disabled for whatever reason. Leaves the current employer and applies for a position at the previous employer (the one with the 'no re-hire' policy).

Question: Is the company forced to re-hire this employee because of his disability status (assuming he can perform the duties, etc.), OR does the company retain its right to 'not re-hire prior employees' because it is company policy, not discriminating against any particular class, etc. ?????

This discussion really got some of us going - so I said I'd take it to my friends at hrhero. What are your thoughts?

Thanks,
[email]cwood@tcpud.org[/email]

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 04-18-03 AT 09:59AM (CST)[/font][p]ADA does NOT require an employer hire any individual just because he or she is disabled.

While ADA can be part of an affirmative aciton program if handled correclty, as long as an employer is not basing the decision not to hire on the individual's disability (assuming he or she is qualfied to do the job with or without reasonable accommodation), the employer is essentially on safe grounds. Of course, the canddiate may challenge the denial, but if the employer truly has a policy and absolute practice of not hiring former employees, I seen no violation. Since the only other consideration would be the possible impact such a policy and absolute practice have on protected groups, the reality is off course in other for that to occur the company would have to be hiring consistent with protected group population statistics (affirmative action) in the first place; so, even that type of issue wouldn't arise.

Cotterwood

Thanks for your response, that was my response to this individual at the group meeting. However, he was getting red in the face and rather than have him
blow a gasket', I just said I was sure I was correct, but would 'check my sources' and email the group.

As far as I know, this was just an academic question that popped up in the 'round table discussions', nobody really took 'ownership' to the situation.
However, it sure got a lot of discussion going.

But my comments agreed with your response, that as long as this was a long standing policy that was regularly practiced with all ex-employees, that this was not a 'discriminating' procedure.

Thanks so much.

SDDCHR

I guess I really don't understand the "No Re-hire" policy? There are many reasons why a person may leave employment. I guess recruiting must not be hard in your area? As far as rehiring the previous employee who is disabled, as mentioned you do not have to hire someone just because they are disabled. Remember, you just can't discrimate against them. You're still going to hire the best applicant for the job!

Parabeagle

My take is that, as long as they apply their no re-hire policy consistently and nondiscriminatorily, the ADA issue doesn't enter into it. I would say they are not obligated at all.

HRsage

[font size="1" color="#FF0000"]LAST EDITED ON 04-18-03 AT 11:26AM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 04-18-03 AT 10:50 AM (CST)[/font]

I agree with the above posts. I used to work for a company that has a no-rehire policy. They are consistent with the policy. The notion that the first employer must rehire the former ee because they used to work there is a bit strange and inaccurate.

edit: I was just checking the National News portion of HRhero and there is a Supreme Court case regarding a similar situation to this one. The case has other variables than this however, and the company involved may have violated ADA by not re-hiring the individual- the court is deciding. From the original post this company has no re-hire policy period. From the court case the company has a no re-hire policy in regards to termination or resignation in leiu-of discharge. So it's a bit different.

Cotterwood

Thanks for your response.

First: Where did you see this court case? I'd like to send a copy to the person that argued the 'must re-hire because of ADA' point to me. I had the same point of view as you and the rest of the responses, and this person adamant about his position - of course so was I and a few others in the room. I
ultimately offered to 'check my sources' on this and email all of them.

Like I said, this was 'as far as I know' just an academic question at the time.

Thanks so much for your response.

HRsage

On the left side of this website is Employment Law News and Advice, underneath is the section for National News. It's the article referring to High Court will determine rehire obligations.

Don D

Regarding the notion that HR has some sort of obligation to tell people in discussion groups what the basis is for their contentions and conclusions, is inaccurate at best. The world is full of wannabe HR people who will challenge your decisions and demand to know from whence came your conclusions. Pay them little, if any, attention, unless they are upwards in your chain of command.

The earlier posts are correct. If you have a firm and consistent policy in place that prohibits rehire of former employees, the ADA has no impact on it. Your question wasn't about the wisdom of a no rehire policy, so I won't go there.