I am planning the re-opening of my business. I don’t anticipate that I will need all of the employees I had before the crisis. Do I have to bring everyone back? If I don’t, how should I choose who to bring back?
There are several factors to consider when taking this step. Obviously, business owners have tried to retain their most valuable and dependable workers whenever possible during the Stay at Home period and they will need to bring those who are most productive and versatile back first to efficiently get the business rolling again. But what about the others?
(i) Discrimination: While a few rules and regulations may have been furloughed (along with millions of workers) as a result of this pandemic, they will return more rapidly than the workers, and the majority of regulations remain in force. As employers prepare to reopen workplaces and restart operations, it is likely that most will not need the same number of employees they had when the crisis began.
Employers with 15 or more employees are likely covered by Title VII of the Civil Rights Act of 1964 and its many amendments and regulations. If a protected employee (race, sex, age, national origin, etc.) isn’t called back to work when other, non-protected employees are, a charge of illegal discrimination might arise. Mediocre to marginal performers may well face some challenges in finding new employment post-COVID19. As the opportunities for work and income dwindle, litigation becomes an option with very little downside.
So how do you minimize your exposure?
We recommend that you always perform this step when making employment change decisions and it is especially important now! You should take the time to document your selection process and the factors you considered when making the determination of which staff members to bring back. Secure any performance records, disciplinary actions, etc. and include them in your notes. Be as specific as possible with dates, names, witnesses, etc. This will not make you bullet-proof, but it should go a long way in demonstrating that your decision was based on non-discriminatory factors.
(ii) Employee Morale: During this initial re-start period, many employers will be working their employees on abbreviated schedules. You should be cognizant that there is a point at which the income from hours worked eclipses the amount of unemployment compensation to which they are entitled (unique to each person but limited to $275 maximum in Alabama). When they cross that line, they will not be eligible for state unemployment compensation and, therefore, not eligible for the $600 federal supplement. An employee who is working reduced hours but makes less than his/her maximum, may still receive “partial” unemployment compensation benefits (the employer should file them weekly) and the federal supplement. While most workers will be glad to return to the workplace, and there are business considerations that will far outlast this temporary federal supplement (scheduled to expire July 31st), we think you should be aware of the possibility that some of your employees might be reluctant to return to the workplace for part-time work when doing so might result in a significant reduction of income for the week.
About the PeopleSmart Founder
Carl S. O’Neal Jr. is the founder and managing member of PeopleSMART LLC, a human resource management and consulting company providing HR and operational consulting and management services for small to mid-sized businesses in many varied industries including technology, retail, health care, pharmaceuticals, manufacturing, entertainment, automotive, construction, food, industrial supply, material handling, property management, avionics and aerospace, telecommunications, transportation and publishing. The company assists in turning players into champions as they coach businesses on how to work to win!
A member of the Alabama and American Bar Associations, O’Neal maintains a focused legal practice representing employers in employment and general corporate matters. He is a trained mediator and frequently represents clients in these alternative dispute forums.
Prior to PeopleSMART, he served as vice president of operations, human resources, and loss prevention for Marvin’s Inc., where he was also house counsel and a director. O’Neal is a graduate of Florida State University, the University of Alabama and Cumberland School of Law at Samford University. He is a member of the Society for Human Resource Management.
Carl S. O’Neal, Jr., Esq.
Law Office of Carl S. O’Neal, Jr., P.C.
2602 King’s Ridge Drive
Birmingham, Alabama 35243
Phone: 205-701-2633 | Cell: 205-907-4034 | Fax: 888-376-1201