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How long after eliminating a position should we wait before filling a position?

While there are no laws that dictate a specific time frame to wait after a layoff before filling a position; there are several reasons an employer should proceed cautiously when hiring for a position that was recently part of a reduction in force or job elimination.  Handled improperly, an employer may be accused of using the position elimination as a pretext for what would otherwise be an unlawful termination. A former employee may attempt to sue an employer for wrongful discharge within state and federal statute of limitations time frames.

As with all negative employment actions, the reasons should be lawful and justifiable. If there truly is no longer a need for a position, and the employer can show business need for the elimination, it would generally be permissible to terminate employment for position elimination. It would be reasonable for an outsider to then believe this to be a permanent elimination, and not expect the employer to rehire for the position within a short time frame.

However, if the employer does try to rehire for the position within six months or less for example, and the former employee finds out the new hire or replacement is younger than him or herself (age 40 or under), of a different race, religion, gender, less qualified, etc. it may cast doubt on the legitimacy of the position elimination in the first place. If the employer then cannot show the business need for the elimination, it may find itself in legal trouble. In short, position eliminations should not be used as a quick fix for easily eliminating a poorly performing employee. 

If, after a position elimination, the employer discovers that the position really was needed, it should be able to demonstrate why the person eliminated wasn't offered to be reinstated or clearly demonstrate how the role changed and why the person eliminated cannot fulfill that new role.

So what about general layoffs and recalls? Again, there are no laws that require an employer to recall laid off employees unless it has a policy or collective bargaining agreement stating otherwise. In general terms, a layoff indicates an employer doesn't have enough work to keep everyone on staff, but may expect to have more work at some point in the future.

And while the law does not require employers to recall laid off employees or show them preference, there is nothing stopping them from applying for rehire when jobs are reposted. Former employee-applicants should be given the same consideration as all other candidates, barring any rehire policies the employer may have.

Does this mean then that employers should always use layoff and not position elimination as the reason for termination? No. Human Resource professionals should guide their organization in truthful terminations for both legal and ethical reasons. It is important to follow your normal progressive discipline process for performance issues, educate managers on unlawful discrimination concerns, and stop potentially unlawful terminations before they occur.


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