Legal Ease Avoiding Employee Recall Issues By Richard D. Alaniz, Alaniz Law & Associates T
he desire to get back to normal is growing by the day across the country. It is a feeling that is
shared by virtually every person in the country. As the effects of the Coronavirus pandemic begin to dissipate, shelter-in- place orders expire, and the preventative steps taken have their intended impact, employers will begin the process of recalling furloughed employees. Careful planning will be critical if potential issues, both legal and practical, are to be avoided.
Recall Obligations If an employer is subject to a collective bargaining agreement, it is virtually certain that it contains layoff and recall provisions. Seniority generally dictates the order of recall and employers are obligated to follow it or else be subject to grievances and/or unfair labor practice charges. In most non-union situations the employer must look to its written policies, usually contained in the employee handbook. Many include language relating to layoffs and recalls. If so, those procedures should be followed absent unusual circumstances. Since an employee handbook is generally not considered a binding contract, failure to follow its provisions may not result in a lawsuit, but employee morale and the employer’s reputation will suffer, perhaps permanently.
The Recall Process If there is no contractual or established policy or commitments that mandate a process, an employer is free to implement a policy on recalling employees. A policy is imperative if the recall is to proceed in an orderly and legal fashion. In order to help avoid any legal claims, the policy must be reasonable and non-discriminatory. It must be applied
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in such a manner as well. The policy must be specific about the terms and conditions of recall. It should address at a minimum, the following issues: (1) How the recall decisions will be made. It should specify that the company retains discretion to consider employee’s skills and the needs of the business; (2) Notice requirements,
including responsibility
on the employee to maintain contact to affirm availability and time frame for responding to recall notice; (3) Impact of the furlough on vacation accrual and other benefits; (4) The time limit on how long an employee will be considered to have recall rights; (5) Pay out of any accrued vacation or similar benefits for employees not recalled and/or whose jobs have been eliminated. There are no legal requirements for how long the period of recall rights may be. While other matters may be addressed in a recall policy, these listed are among the most fundamental decisions that will be made in any employee recall.
Potential Discrimination Claims In most if not all operations, quickly resuming production will be the priority. The potential for discrimination arises in the selection of who to recall. All of the protective provisions of Title VII and similar state human rights laws continue to apply. Since the majority of today’s workforce
falls within a protected
category, there will be some situations where an employee within one or more of the various protected categories will be passed over for recall or not due to job elimination. While potential claims of discrimination based upon race, gender, national origin, or disability are always possible in such circumstances, perhaps the most potential lies in claims of age discrimination under the Age Discrimination in Employment Act
(ADEA). The large number of employees well past the protected age of 40 in today’s workforce should be a cause for concern for both the recall process, as well as in the case of job eliminations. Whether accurate or not, older workers are often viewed as less productive and more expensive than younger employees. They are sometimes the first casualties in a workforce reduction. The
impact of the extended
job and income loss, as well as the devastation of 401k accounts as a result of the pandemic, will force many near- retirement employees to want to keep working. Many were already considering this as a result of the significant losses to retirement plans incurred in the 2008- 2009 recession. Knowing the difficulty of finding suitable employment when a person is 50 or 60, or perhaps even older, they will desperately want to hang on to their pre-pandemic jobs. Therefore, if theirs are the jobs eliminated, or it even appears to be the case, the potential for claims of ageism could be significant.
Practical Considerations Actual or Perceived Unfairness Whether potential legal obligations to follow a certain recall procedure might or might not apply in any given workplace, it could be less important than the long-term impact on employee morale created by a recall process that is actually or perceived as unfair. In these most stressful and unique circumstances created by the workplace effects of the Corona-virus, employees will understandably be particularly focused on how they are treated by their employers. While most employers took every reasonable step to avoid furloughing their employees, the decision ultimately had to be made. Most employees accepted it as an
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