Accordingly, employers must pause to thoughtfully manage the legal risks that lie ahead in determining who to put to work and who not to put to work.

Disparate Treatment Exposure 

Experience in California, New York and other states is demonstrating that workers who are passed over as businesses rebuild their workforce are filing lawsuits. One variety of lawsuit alleges that the employer made its decision not to recall or hire the plaintiff based on an unlawful reason peculiar to this pandemic. For example, those passed over are filing lawsuits alleging that they were not offered work due to their advanced age, their medical condition or disability, or both age and disability. Plaintiffs and their attorneys are arguing that employers selected younger employees who they viewed as less vulnerable to the virus in order to reduce the risk of workers’ compensation claims based on coronavirus transmission at work. Other plaintiffs allege that their employers – viewing the plaintiffs as particularly vulnerable to infection – made the decision not to offer them work in order to “protect” them, decisions which the lawsuits characterize as unwelcome paternalism and illegal age and disability discrimination.

I also anticipate lawsuits being filed alleging that employers declined to recall or hire workers with children in order to avoid being burdened by their child care and home-schooling responsibilities, claiming unlawful family status discrimination.

Disparate Impact Exposure

In formulating plans to staff up, employers should also take into account the risk of disparate impact claims made by those not recalled from furlough or otherwise hired. Such claims allege that an employer’s criteria or method for making recall or hiring decisions, though innocent of any intent to discriminate unlawfully, nevertheless disproportionately impacted individuals having particular legally-protected characteristics, such as race, ethnicity, gender, etc.

Retaliation and Whistleblowing Exposure

Yet another area of risk is the allegation that certain workers were not recalled after furlough because they expressed virus-related concerns about returning to work or complained about what they believed were shortcomings in the employer’s COVID-19 safety protocols. 

Local Regulation of Recall Rights

A number of local jurisdictions have enacted ordinances providing to an employee who was laid off due to the pandemic union-style rights to be recalled to work when the employer is ready to fill their position or a substantially similar position. The cities of Los Angeles, San Francisco and Oakland, for example, have such measures in place. The Los Angeles ordinances apply to operators of only certain businesses, such as hotels and their restaurants, event centers and the janitorial, maintenance and security employees of non-residential commercial properties. The San Francisco ordinance applies more broadly, in brief, to private sector employers operating in the City or County of San Francisco that employed 100 or more employees at the time of a pandemic-related separation of one or more employees. Information on the Los Angeles ordinances may be found here and on the San Francisco ordinance here.

Employers should determine whether their hiring is subject to any similar measure.

Action Items to Consider

Just as many carefully craft plans to determine who will be let go in force reductions, employers should exercise similar discipline and forethought in designing the system by which they will decide who – and who not – to bring back to work as they rebuild their workforce.

Key action items to consider include:

1. Develop neutral, objective criteria to be applied in determining who will be recalled or hired. Simple neutral criteria may be defensible, such as rehiring on the basis of the seniority of those furloughed or laid off (the longest term employees are brought back first). If more complicated than that, the plan should be in writing and prepared to withstand scrutiny by capable plaintiffs’ counsel. The criteria and their respective weight may vary from position to position. For larger companies bringing back many workers, consider creating a system that permits numeric scoring of candidates.
2. Consider involving several appropriately qualified people to apply the criteria, score candidates and make decisions as to who will and will not be offered work. Doing so generally should make the decisions less susceptible to attack based on an allegation that a single decision-maker was unlawfully motivated by bias or a retaliatory intent.
3. Consider “test runs” of the draft criteria. Compare the pool of people the plan selects for hiring with those the plan does not select for hiring. Look for statistically significant impacts on people of color, older candidates and others having legally-protected characteristics. If the test runs display potential disparate impact, consider revising the plan.
4. Apply common sense. Who in the pool of workers tentatively slated not to be offered work may pose obvious risks of liability? Identifying, for example, older, disabled workers, those who have complained they believe the COVID-19 protocols in the workplace are deficient, those with children and child care responsibilities, and other workers who may be clear risks is a necessary step in attempting to manage the risks.
5. Consider developing the recall and hiring criteria with qualified employment law counsel involved, and within the attorney-client privilege and attorney work product protection. Companies that proceed without counsel leave the process by which they choose criteria, perhaps changed criteria in the development phase, their “test runs,” and other steps – that is, the story of “how the sausage was made” – potentially open to discovery by plaintiff’s counsel if those not offered work file suit. Access to draft criteria, internal company emails and dialogue regarding the recall or hiring criteria and other information and documents often offers plaintiffs’ counsel opportunities to criticize the recall or hiring plan ultimately implemented. Involving experienced counsel should shield the process from opposing counsel’s view later and will provide the employer with valuable expertise as the recall or hiring plan is developed and implemented.

Employers are understandably eager to rebuild their workforces and move forward. However, it is critical that they do so defensively in order to emerge from this pandemic with a minimum of potential employment litigation in their wake.