As employers prepare for this phased reopening one of the most difficult decisions they will need to make is who to recall from furlough and when.
Deciding which employees to return to the workplace following a furlough or temporary layoff, and in what order you’ll call them back, will require an individualized analysis for each organization. For those who aren’t sure where to start, we provide this as a starting point.
First, think about overall operations in the future. How busy do you expect to be? It’s best to slightly underestimate need; if employees stop their unemployment insurance claims only to be sent home again after a few days, their continuity of income may suffer. It’s also easier administratively if you only need to furlough and then recall an employee once. And, you can always recall more employees once you’re certain the need exists.
Individual Employee Selection
Once you’ve settled on a general staffing plan, you’ll need to decide which employees you want to return first. Establish one or more criteria for return. You don’t have to adhere perfectly to the criteria you choose, but the more closely you follow your system the easier it will be to explain decisions to employees (or government agencies or lawyers) who may be unhappy with your approach. If you deviate from your system, be sure to take good notes on why you did so. Some potential criteria for employee selection include:
- Unique or difficult to replace skill sets
- Overall performance
- Demonstrated ability and willingness to do work outside of their usual assignments
You may choose to call back some employees who have a mix of strengths but are not standouts in any area. This is perfectly acceptable, but be clear with employees and document your reasoning. All criteria used should be job-related or related to business necessity.
Potential Discrimination Pitfalls
Making decisions based on someone’s inclusion in the following federally protected classes is illegal: race, color, national origin, religion, sex, age (over 40), pregnancy, citizenship or immigration status, military status, and disability. Some states have additional protected classes, so be sure to check state law. Under the current circumstances, there are a few types of discrimination in particular that employers may fall into.
- Age Discrimination
- Disability Discrimination
- Retaliation for Use of Protected Leaves
Documentation is just as important now as ever. Even though it may feel like a mass furlough is the perfect opportunity to let go of poor performers, employers shouldn’t assume that their motives won’t be questioned. Documentation should be in writing and easily understood by an outsider to your business. Document why you chose to bring back certain groups of employees before others, as well as why each employee was chosen before others in their job type.
For Those You Don't Bring Back
If you are bringing employees back in phases, it will save you time to communicate that plan to everyone as the recalls take place. If you bring back half your workforce but don’t communicate with the other half, they’ll hear about it through the grapevine and may start calling, texting, and emailing you frantically for more information.
It will be best if you have a clear communication strategy and message from the outset and put people’s mind at ease about the future. If you have decided not to bring certain employees back at all, you should communicate that decision to each of them as soon as possible so they can start making plans for their next job opportunity. In the era of social media and online reviews — especially post-COVID-19, when many businesses will be fighting to rebuild their customer base — employers will benefit from showing compassion, especially toward those who will no longer be employed with them.