It was my understanding if you lay off an employee you can not replace their position for a given amount of time. Am I wrong? I was told with Florida being a RTW state that can not be correct.


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  • Hello, and thanks for your question!

    There is no state or federal law that specifically prohibits an employer from replacing or refilling a position after the previous worker was laid off. As Florida is an at-will state, employment can be terminated at any time for any reason that does not violate existing law, employment contracts, or collective bargaining agreements.

    (So, for example, there may be a provision for recall or rehire in an employment contract or collective bargaining agreement, but otherwise Florida and federal law do not place specific limits or requirements on employers).

    With this in mind, employers should be cautious if an employee is laid off and is told that the layoff is a result of lack of work or downsizing, but then the position is refilled a short time later.

    If a former employee is given reason to doubt the validity and veracity of the reason for which he or she was terminated, then that employee may also begin to question whether the termination was actually based on an illegal, discriminatory reason. For example, if an older employee is laid off due to "lack of work," but is then replaced with a younger worker a few weeks later, then this practice could suggest that the "lack of work" was a pretext meant to hide a different, possibly discriminatory reason for the employee's discharge. The former employee may believe that age discrimination has occurred, and he or she may have a valid claim under the ADEA.

    Additionally, refilling positions in this manner can also be confusing and disruptive for remaining/current employees -- if employees believe that one of their colleagues was laid off, but then see the same position refilled a short time after, those remaining workers may wonder what "actually happened" and also begin to doubt the employer's honesty (and wonder whether they would be subject to the same treatment).

    So, in general, when an employee is discharged -- whether for layoff or other reasons -- what is most important is that the employer accurately and completely documents the process. If the employee is truly laid off due to downsizing or elimination of the position, but business circumstances then turn around and require the position again, then thorough documentation will show that the employer had no discriminatory or otherwise illegal motive in the layoff and the employer can rehire as necessary.

    Finally, a practical suggestion -- when possible and if the employment ended on good terms, employers can always consider reaching out to the former employee and offering the position to him or her first before conducting a broader job search.

    We hope this information is helpful!

    Holly Jones, JD
    Legal Editor
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