We had to lay off several employees in the last few months but now we need to hire on several employees. Do we have to rehire the same people we let go?

Under certain narrow circumstances, California employers may be required to rehire the same individuals that they previously laid off. In response to the COVID-19 pandemic, California passed a law creating what is commonly called a “right of recall” for certain employees laid off due to COVID-19. The law applies only to hotels, clubs, event centers, airport hospitality operations and service providers, and building services such as janitorial, maintenance and security services. Employers in those industries who laid off employees for COVID-19-related reasons may have to offer new positions to those former employees. The law sunsets at the end of 2025.

Additionally, the law presumes that a covered employee separated from employment due to lack of business, reduction in force or other economic nondiscplinary reason was separated due to a COVID-19-related reason unless the employer establishes otherwise. As such, employers should ensure they document all reasons for separations and reductions in force not related to COVID-19 in order to rebut the statutory presumption.

Covered employers should consult with legal counsel regarding their obligations under the law.

You can find more information in the Displaced Worker section of HR Library.

Apart from those circumstances, when rehiring employees, the same basic hiring issues apply. For example, employers must be careful not to use hiring preferences that result in a discriminatory impact.

An employer may want to hire back former employees who are reliable and experienced. Keep in mind that training a new employee can be a costly matter, and good employees who the employer lost purely to the economic downturn still may be available for work.

Unless the employer has specific policies outlining rehiring employees, the following points should be kept in mind:

• First, there is no obligation to rehire employees who were subject to a layoff. If the employer has implemented special procedures regarding rehiring, however, it must comply with its own internal policies. For example, some employers may have a policy that they will rehire beginning with the employees who have the most seniority. If so, follow that policy.
• If a collective bargaining unit is in place, the employer must take care to assure it complies with the terms of the collective bargaining agreement.
• If the employer has made any promises to the former employees, it must comply with said promises or potentially be liable to a claim of breach of contract.
• Keep in mind that if you laid off a number of employees in a protected class (e.g. over 40) and then rehire substantially younger employees, there can be a claim of subterfuge - that the original layoff was discriminatory. As with the initial layoffs, the rehiring process should be examined for discriminatory impact.

Major rehiring should involve careful examination of the skill sets the business needs. It is wise to consult with an employment law attorney for guidance in delicate matters.