While the Coronavirus outlook remains unsure, communities across the U.S. are eager to return to some semblance of normalcy. As shelter-in-place orders expire and the nation’s economy reopens, employers are finding themselves knee-deep in the process of recalling their workers.
In our previous blog, we explored the fundamental need-to-knows of furlough and layoff compliance. Many companies have faced adverse economic hurdles and are being forced into difficult workforce reductions. But once the dust settles, how should those organizations and HR teams get their people to come back?
In the second half of this critical discussion, we explore best practices for developing an effective recall policy in the midst of the COVID-19 crisis.
Definitions and Considerations
As noted by SHRM, a recall is the reinstatement of a laid off [or furloughed] employee to active status. And as most companies can attest, conditions that dictate who returns and in which order can be tricky. Some businesses may facilitate recalls on a slower timeline based on demand, social distancing mandates or production timeline. While others may need to recall everyone but must re-evaluate the terms of employment.
As a preliminary step to developing recall policy, you should first evaluate your business’s needs. In reopening, will your company be operating with significantly reduced capacity? What does the world post-lockdown look like for your industry? Are new skillsets needed to help you adapt for future business success? If your business survived the Great Recession, were there products or services you found more or less resilient?
As a note, you should avoid bringing people back unless you’re absolutely sure you have the means to employ them — as there’s nothing worse for workplace morale than subjecting your workforce to layoffs or furloughs more than once. Asking yourself questions like these can help your company assess whether they’re actually prepared. Once due diligence is done, you can move onto recall strategy.
Recalls from Layoff vs Recalls from Furlough
Subtle differences exist between the recall process for layoffs and furloughs – but the common denominator lies in paperwork. In the case of layoffs, the employment relationship has formally ended. This is an important designation, as it requires returning workforce members be treated as new hires or rehires. Offer letters, benefits, state reporting requirements and documentation (like W-4s and I-9s) should be reprocessed as if onboarding a brand new employee.
In the case of furloughs, the first step in outreach lies in distributing an “offer of recall”, a letter that documents any adjustments to the employee’s role, pay, reporting structure or responsibilities. Consider this document a contract of sorts – an opportunity to seek consensus around the conditions of their return, as well as any new policies or working conditions that might catch your employee by surprise.
Given the volatility of the COVID-19 landscape, it is common for workers to discover their job or environment has changed. Everyone should agree to new terms before the employee walks in the door. So, ensure your letter includes a clear opportunity for recipients to explicitly confirm or deny their return, including a deadline for response.
Which employees get recalled first?
If you’re empowered to bring back your full workforce, disregard this next passage (and congrats!) For the sake of learning, let’s assume you’re a business incapable of recalling every employee. Our first point of advice is to tread carefully. Similar to furloughs and layoffs, your company may ultimately be held liable for any recall justifications you make. So, it’s critical to establish sensible criteria for which employees are called back first.
For some companies, recalling employees according to job function and seniority is the method with the least risk. To safeguard your decisions, you might also consider turning a focus to workers who had unique or difficult-to-place skill sets, exhibited stellar performance, or demonstrated a willingness to take on assignments outside of their role. Did a particular employee volunteer to complete unexpected responsibilities? Recalls are a great way to reward their go-getter attitude. [As a note, while seniority does follow objective reasoning and can help limit company liability, be careful, as seniority it doesn’t always translate to performance. Considering staff rank is an acceptable criterion but avoid centering it as a top priority.]
Avoiding invalid recall justifications are just as important as identifying good ones. And as an employer, you should be mindful of an array of hurdles. Be conscious of characteristics that are protected by federal and/or state/local laws; including but not limited to age, disability and high-risk conditions, past or anticipated use of leave time, pregnancy, gender, religion, sexual orientation, race, ethnicity, military service, citizenship status, etc…Using these as a basis for your recall decisions might result in pretty hefty discrimination claims — even when committed in error. For example, cutting high earners from your recall list might make great financial sense, but this can disproportionally impact workers over the age of 40. Be mindful of how such “disparate impact” might get you into trouble and consult with an employment law attorney if you’re unsure.
Lastly, in considering pandemic health hazards to returning employees, you might feel particularly guilty or concerned about bringing back older or high-risk workers. While the urge to protect them is understandable, this should never hold weight in your decision to invite them back to work. It is never a company’s job to make health decisions for employees, so now’s not the time for any unasked favors. However, if an employee expresses concern about COVID-19 health risks, you can – and should — consider reasonable accommodations, including extended unpaid leave, teleworking arrangements, wearing additional PPE or allowing additional hygiene or cleaning breaks.
And remember, compassion is legal; so, in making your recall determinations, we encourage you to keep the human aspect of your policies in mind.
As always, SourcePointe remains here as a trusted guide. If you need help figuring out how to reopen your business, contact us today.Back to Insights