Should You Rehire “Boomerang” Employees? Part Two

November 24, 2014

For those of you who did not read last week’s Blog “Should You Rehire “Boomerang” Employees” you need to go back and read that article first.

Number 1: Circumstances of the Departure

The number one consideration is to determinate why and how the employee left. Not surprising, employees who left voluntarily on good terms are best suited to return to work, as opposed to those employees who left involuntarily or on bad terms. Did the employee leave because of dissatisfaction with the company, or because of some personal reason, like spouse job relocation, pregnancy, or some other reason?

If an employee left because of lack of growth opportunities, because the employee thought he was underpaid, or because he had a less-than-stellar relationship with a supervisor or co-workers, unless the company has undergone a significant change since the employee left, it is unlikely that the employee’s issues with the company will have resolved or stabilized in a manner that will result in long term, sustained employment.

In addition, if the employee was fired or forced out, they should not be considered for re-hire, unless of course the person or persons who forced them out were discovered to be the source of the problem. Similarly, if an employee left involuntarily because of poor performance, the employer would generally be foolish to rehire them.

Some employers also refuse to re-hire an employee who left to go to a competitor. There may be non-compete issues to consider in this type of situation. It could be become a very expensive rehire decision is if it results in litigation with the employee’s most recent employer.

These considerations are examples of why it is important for employers to conduct and document exit interviews when employees resign or are terminated. An exit interview gives the employee an opportunity to provide the employer constructive feedback about their job, co-workers, supervisors, and the company overall. If the employer documents what the individual said during the exit interview and retains that information, it can be an invaluable resource to refer back to when considering that individual for rehire a few years down the road.

Number 2: Length of Departure

Another consideration is how long the employee was away from the workforce. Employees gone for short periods take less time to train and re-acclimate to the organization, its culture, and the demands of the job given the current organizational climate. Bottom line, the shorter the leave, the more money the company can save.

Number 3: Past Performance

This largely follows Number 1. One reason to keep good employment records is to determine if an employee should be considered for re-hire. Of course no employer wants to re-hire a poor performer or a chronic attendance problem. But for large employers or employers with high turnover, there may be little or no institutional knowledge of an employee’s prior employment tenure. This means, if details about the employee’s prior employment are not in the records, the employer may not discover it.

This is also why it is important for employers to ask on the employment application if the applicant has ever worked for the company before and, if so, why the employee left. If the employee was terminated, it should come out at this time. If the employee lies and is hired, once the lie is discovered, the employee could perhaps be terminated for lying during the application process.

Number 4: Performance at Current Employer and Reason for Returning

During their absence, there is a good chance that boomerang employees have learned new skills, expanded their network, and had other successes. It is important to have a candid conversation with the employee and find out exactly why the employee wants to return. There are right reasons to return and there are wrong ones. If an employee wants to return because the employee misses former colleagues, it is not a good reason. If the employee wants to return because the employee has not had success in subsequent employment, it is not a good reason.

The best case is when an employee wants to return because the employee has had time to learn, grow, develop new skills, and believes the former employer can take advantage of the employee’s newly-expanded skillset and network.

Number 5: Needs of the Company

No matter how great a former employee might have been or currently is, ultimately the decision to re-hire comes down to whether the company needs the skills of the employee, the money to hire the employee, and has a job open for the employee.

In addition, hiring a boomerang can be political, and the re-integration of a boomerang precarious. The players may have changed since the employee left and interpersonal relationships may have changed too. Dynamics may also prove tense if the boomerang leapfrogged over an incumbent employee, who might feel slighted by not getting the job.

 

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Should You Rehire “Boomerang” Employees?

November 17, 2014

When the question used to come up of whether to re-hire a former employee, many employers aligned with one school of thinking: “If you thought the grass was greener on the other side, you can stay there.”

This particular mindset, however, has increasingly becoming the minority view. This attitude shift is forcing recruiters and employers to rethink not only their recruiting strategies, but also their hiring and exit strategies.

Skill Specialization

A factor to consider is skill specialization. The professional workforce has changed, and the demand for employees with specialized skills is high. As such, employees with the covetable skills are constantly offered opportunities. Some employees leave, not because they are disloyal, but because they can and because, these days, money and job flexibility talk. Some employees stay, not because they are loyal, but because they have to. This is just as much the employer’s fault though as it is the employee’s, because employers need to learn how to retain top talent through more flexibility, creative fringe benefit options like onsite day care, etc.

The combination of generational disparity, the economy, changing/expanding gender roles and skill specialization have made life-long employment a thing of the past. The present and the future is the free-agent generation. The good news is that employers seem to be getting on board. To many, leaving a company is no longer viewed as a betrayal, and many companies have changed their thinking about boomerang employees. They no longer see them as “ex-employees,” or “traitors”; rather, they consider them “alumni,” and continue to maintain their connections to these former employees.

Advantages

There is no denying that there is value in hiring a boomerang employee. The cost of losing an employee and hiring and training a new one is expensive. Studies suggest that hiring a boomerang employee has one of the highest returns on a recruiting investment – 1/3 to 2/3 the cost of hiring a newbie employee. It often makes sense then for an employer to rehire a former worker to offset some of these costs.

Social media sites like LinkedIn make it even easier to keep track of former employees, and it is typically less expensive to rehire them directly and bypass the search and recruitment process altogether. With these employees, employers know what they are getting.

Another advantage with boomerang employees is saving time on training and ramp-up time, and they tend to acclimate more easily as they re-enter the workforce because they understand the organization’s work structure and culture. They may also know most of the key players (if the company has not had a lot of turnover).

Another value, boomerang employees have gotten their chance to see if the grass really is greener on the other side. Returning employees who have gotten to see firsthand that it is not, are many times better workers, more committed, more loyal, and better brand ambassadors.

The Risks

But it is not all positive. There are risks involved in hiring a boomerang employee because not all boomerang employees are created equal, and it is not always the “one that got away” that tries to return.

There are five considerations when deciding whether to return a boomerang employee. Next week I will present these five areas. I will take you through the circumstances of the departure, the length of the departure, past performance, reasons for returning, and the needs of the company.

Until then!


An Emerging Workers Compensation Defense for Unwarranted Claims!

November 10, 2014

Detailed, written job descriptions and or employee handbooks could be vital to employer’s defense in workers’ compensation claims. An emerging defense for employer against workers’ compensation claim is that the employee’s own actions – rather than the work-related injuries — have led to the employee being off work. The theory is that an employee’s actions constitute a voluntary abandonment of employment thereby precluding receipt of temporary total disability compensation.

The key to the concept is that employers must provide employees with a written job description that establishes job duties and responsibilities. It would be important to ensure that every current employee, and new hire, be provided with a copy of an employee handbook detailing the employer’s policies and procedures. Of importance, is that once the policies are distributed, employees are disciplined in writing for violating work rules, and that they have an understanding that any future violations would result in termination from employment.

Now, once the employee is terminated, the argument is he/she voluntarily abandoned her employment as a result of her termination for violating a written work rule and is not entitled to receive compensation. In essence, it is an employee’s own actions which takes them out of the workforce, rather than the work injury, and therefore, the employee is not entitled to compensation. They key to this is a discharge from employment is considered to be a voluntary abandonment only when the discharge arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee.

Ok, before you tell me this will never work, it has! The Ohio Supreme Court and the Industrial Commission found that an employee who knew her actions violated the employer’s standard of conduct could result in her termination. The Industrial Commission noted that the employee was in receipt of an employee handbook that contained policies, rules and disciplinary processes. Further, the employee knew her job responsibilities were articulated in her job description. Thus, the Ohio Supreme Court found that she was on notice that her actions in failing to abide by the rules could result in her termination of employment.

This is a case that highlights the continuing importance of conveying to employees their exact responsibilities and consequences for the failing to abide by rules, policies and procedures, whether this is done through an employee handbook or in job descriptions. A useful job description includes details of job duties, responsibilities assigned to the employee and any applicable standards of care or conduct. Job descriptions and handbooks containing policies, procedures, rules and disciplinary processes should be reviewed and updated as necessary to ensure they actually reflect current practice. Whenever a new update is issued, employees should be trained on the changes and sign an acknowledgement of receipt of the new information. Whenever possible, a termination letter should refer to the exact rule, policy or procedure violated. If these simple steps are followed, an employee is injured on the job and terminated for violating a written work rule should be precluded from receiving compensation based on the employee’s “voluntary abandonment” abandonment of employment.

I realize this approach may appear to be radical but the underlying premise is sound. Put job descriptions in place and get an employee handbook. Let’s start with these basics and hopefully both or either may help with holding off some of these unwarranted claims. Just food for thought!

NOTE: The Podcast this week presents a “Wage & Hour Checklist” can use to double their internal procedures to ensure compliance with some of the more litigated areas. Simply go to www.pottsandassociates.com and click on the podcast link.


The Use of Criminal Background Checks In Hiring Decisions

November 3, 2014

The Equal Employment Opportunity Commission (“EEOC”) has published new guidelines related to (a) how employers should manage and handle inquiries into arrest and criminal conviction records of applicants and employees, and (b) making employment and hiring decisions where criminal backgrounds are part of the consideration.  Although the EEOC Enforcement Guidance memorandums are not binding precedent, many judges review and consider them when issuing and deciding litigated matters.  In addition, they will be relied on heavily by the EEOC (and probably the DFEH), in any relevant administrative inquiry being conducted under Title VII (or FEHA).

According to the Enforcement Guidance, statistical evidence demonstrates that broad exclusions for employment or promotion for anyone that has any type of criminal record has an adverse impact on certain minorities including Hispanics and African-Americans.  This simply means unless the employer can demonstrate a legitimate and necessary business reason for such a broad exclusion, an employer who implements a broad automatic exclusion from employment/promotion for any criminal conviction will be risking a disparate impact lawsuit or claim.  In light of the EEOC’s Enforcement Guidance, employers in most cases should avoid implementing broad exclusion policies or practices for anyone with a criminal record and, instead, should conduct an individualized assessment that considers (a) the nature of the crime, (b) the time elapsed, and (c) the nature of the job to determine if the conviction should serve as a bar to employment/promotion.

The EEOC Enforcement Guidance contains a series of suggested best practices for employers who are considering criminal record information when making employment decisions.  The Enforcement Guidance best practices provide:

General

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
  • Developing a Policy
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
  • Questions about Criminal Records
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Confidentiality
  • Keep information about applicants’ and employees’ criminal records confidential.  Only use it for the purpose for which it was intended.

Keep in mind the above represents federal guidelines. Each state may vary as to their particular practices. California, as an example, does not permit applicants to be asked about arrests, just convictions. This issue of criminal background checks is not going away. We will keep you posted on any further updates. For now, we are not recommending a change in any policy that you may have in place.

NOTE: The Podcast this week discusses the financial obligations of an employer when there is a shutdown do to emergency situations within, and beyond, the control of the employer. Go to http://www.pottsandassociates.com or look for me on ITunes. Just search for “Listen Up with Jim Potts.” As always, thanks for listening!