Refilling a recently laid off position

If you layoff an employee for lack or work, is there any type of legal requirement that would prevent the employer from refilling the position with someone else if things pick up?  Is there a time limit that must be followed to reopen the position?  A couple of employees were laid off from various departments about a week ago and now one of the hiring managers wants to refill one of the positions again but wants to search for new candidates instead of contacting the person who was laid off. Could this be a problem? I am very hesitant to post the position. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Your advice would be appreciated as I have never dealt with this type of situation before.

Thank You.



  • 3 Comments sorted by Votes Date Added
  • Does your employee handbook address this issue at all?  My past employers handbook stated that in the event of a lay off, employees did not have right of recall and that recall would be based on best business practices.  I assume that you are not in a union environment that specifically lays out lay off rules.  <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

    I don’t believe that you are obligated to re-hire the ee, but there may be questions about why you laid off one week and posted the same job the next week.  It can look like you were using the lay off as an excuse to get rid of an employee in favor of another.  For example, you laid off a 55 year old African American woman to hire a White 30 year old male.  You need to have documentation well established as why you laid off the ee's and how the selection was done and why you need to re-fill that position so soon after.  I would also have documentation about any past ee problems to show why you did not wish to re-hire.  I would ask your hiring manager why they do not want to re-hire to determine what kind of problems you may be facing. 

    If and when you post the job opening you can be sure that your past employee will see it, after all they are looking for a job, so you should be prepared for an uncomfortable phone call or possible discrimination suit notification. 


  • That is exactly what I want to prevent. It has nothing to do with favoring one class over another, it just boils down to the performance and the fact that this case was bundled up with the other layoffs just makes it an uncomfortable and unanticipated situation for everyone. I will review my options and all documentation to make sure that rushing into reopening this position does not open up a can of worms. Thank you for your response. You completely vocalized everything that came to my mind when this issue arised.


  • However, if you even inadvertently create a trend of laying off people in a protected class or of a certain race and rehiring people not in that class or generally of another race, you will end up with a problem in the long term.

    If you have people you need to fire, advise your business leaders not to be shy and hide behind a layoff.  If you've hired poor performers, then use discipline appropriately and just hire someone better for the job.  That's a lot safer than laying off Sally and hiring John.

Sign In or Register to comment.