From the Experts: Rehiring a Terminated Employee? Consider These Issues First

We terminated two employees a couple of years ago. We’re now rehiring, and both employees have reapplied for positions. Do we have to rehire both? One was terminated for clearly violating company policies, but the other was terminated for less obvious reasons.

The simple answer is no. But be aware of issues such as the following:

• First, there can be specific regulations for different entities. Certain government employers might have rehiring policies in place. Sometimes a collective bargaining agreement (in a union setting) might require the employer to rehire both employees.
• Alternatively, a company might have rehiring policies in place, either via an employee handbook, or a past practice of rehiring former employees.

Absent these situations, there is no law on automatically rehiring employees who have been terminated. In the case you describe, one employee clearly/blatantly violated company policies. The second employee, however, clashed with her new manager — more of a personality conflict — before being terminated.

One problem that can develop is when rehiring decisions appear to be discriminatory. If a terminated employee thinks that the decision not to rehire is based on protected classes, they might file a claim with the California Civil Rights Department or the federal Equal Employment Opportunity Commission (EEOC).

For example, if two ex-employees apply for a job after being terminated earlier, and the one who isn’t hired is in a protected category (such as race, age, religion, etc.) — they could claim discrimination if both ex-employees were terminated for similar offenses.

Therefore, when deciding whether to rehire terminated employees, you should consider carefully the issues above and possibly consult with legal counsel to prevent problems down the road.

Dana Leisinger, Employment Law Expert, CalChamber

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