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Beware of Age & Other Discrimination Claims When Recalling Furloughed Employees

As organizations and businesses ease back into normal operations, employees who have been on furlough face either of these of scenarios:

  • Reinstatement in their job
  • Being reassigned due to the termination of their old position
  • Working for a new employer, who hired them when they were on furlough
  • Permanent job loss at their place of employment

Employers’ decisions regarding who to recall may not always be easy to accept for employees who are not asked to return, as well as those who are asked to take a new position. It may not matter that the decisions are warranted, especially from a purely business perspective. Some employees may feel discriminated against.

Employees under protective categories

As you make your recall decisions, be mindful of the following: All the protective provisions of Title VII of the Civil Rights Act of 1964 and similar state human rights laws continue to apply. However, even though a majority of today’s workforce belong in a protected category, they are not immune to job loss. Job elimination can still result in terminating some employees under one or more protected categories.

This can give rise to potential claims of discrimination based on race, gender, national origin, or disability.

The high potential for age discrimination claims

The most common claims of discrimination are those of age under the Age Discrimination in Employment Act (ADEA). This means that both your employee recall and job elimination processes should take into consideration the large number of employees who are above the protected age of 40. Older workers are often viewed as less productive and more expensive than younger employees; therefore, they are sometimes among the first casualties in a workforce cut.

The impact of job loss on older employees

Many employees who are near retirement age have little choice whether or not continue working. Not when they are living with prolonged job and income loss, made worse by the devastation of their 401k accounts because of the pandemic.

Even before the pandemic hit, many of these older employees were already considering working longer into their older years to offset the significant losses that their retirement plans incurred in the 2008–2009 recession.

People within the ages of 50 to 60 or older rarely land jobs that truly suit them, which is why they will hang on to the jobs they had before the pandemic. However, if those jobs are eliminated or they sense that they will not be getting it back, they are highly likely to claim age-based discrimination.

Do you need expert help in navigating the recall process?

Contact Payroll Systems to see how you can leverage our easily scalable solutions—from paperless new employee onboarding, paperless benefit enrollment, timekeeping systems with companion mobile app, physical clocks, and customized job costing and labor distribution reporting.

We pair human skills and empathy with the latest technology to take on our clients’ HR and payroll processes.

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This article provides general information and shouldn’t be construed as legal or HR advice. Since employment laws may change over time and can vary by location and industry, please consult a lawyer or HR expert for advice specific to your business. You can also contact Payroll Systems to inquire about our HR support services.