Navigating the Perils of Re-boarding

They were terminated, they were gone, but now they're back. When employees are reinstated after filing a wrongful-termination claim, HR professionals are faced with some challenges that require careful navigation.

Wednesday, October 2, 2013
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Late last year, 13 Chrysler employees were reinstated after being fired in 2010 for drinking on the job (acts that were captured on video and reported by a local television station). Despite the outrageous nature of this case, and the fact that such reinstatements are relatively uncommon, HR professionals need to be aware of what could happen in their organizations and be prepared to handle these situations proactively.

"Start with a potential new beginning in mind" when it comes to any termination, says Lori Adelson, a labor and employment attorney at Arnstein & Lehr in Fort Lauderdale, Fla. She says it's also important for HR to do its best to ensure that the transition is confidential and that only those who "need to know" actually do. Following that practice consistently may lessen the issues related to welcoming the employee back into the fold.

Not all employees come back, of course.

In many cases, employers are afforded an opportunity to work with the employee to find some mutual solution, says Susan Lessack, an employment attorney at Pepper Hamilton in the Philadelphia area. Discrimination cases have to be brought before an administrative agency, such as the Equal Employment Opportunity Commission, which may involve a "conciliation process where the EEOC works with the employer to see if the claim can be resolved," says Lessack.

"If, on the other hand, there is a court judgment or a jury verdict," she says, "then there is not much flexibility in terms of whether to [welcome the employee back], or not to do it," she says, adding that the challenge becomes how to reintroduce the employee to the workforce in the least disruptive manner possible.

The initial meeting between the employee and HR is a pivotal point in re-boarding, says Michael C. Jacobson, legal editor at XpertHR in New Providence, N.J.

"HR should go to great lengths to ensure that the employee is not moving forward with any lingering resentment or harboring any ill will," he says. "Explain the process that led to the inappropriate termination, identify where mistakes were made in that process -- if any -- and discuss plans to fix those mistakes candidly with the employee." This exchange, he says, calls upon the human in human resources. "If the employee feels like the employer is making an effort to do the right thing, he or she will be less likely to pursue other remedies."

After that, a simple reintroduction is best, says Adelson. Social dynamics are important and must be addressed. HR leaders, she says, have "to be very mindful of what they say to the returning employee, as well as the employees who are already in the workforce."

The organization's HR department should also be proactive in anticipating any potential future issues, says Lessack.

"When the employee is re-boarded," she says, "I think it would make sense for HR to have a meeting with the person and say: 'I'm aware of the claim. You're being reinstated and our intent is to treat you fairly as if you never brought the claim, which is your right. If you ever feel that you are being retaliated against in any way, please let me know.' " The conversation should be documented, she says, which may prove helpful if the employee ever claims some form of retaliation, but has not reported it to HR, as instructed when rehired.

Benefits and other entitlements, meanwhile, are another consideration.

"Generally speaking, they are going to have to come back at the exact same place that they left for benefits or entitlements," says Adelson. In addition, she says, there should be no waiting period for medical or health-insurance plans to kick in.

"It has to be as if that person never left," she says.

But keep in mind that things may have changed since the employee was formerly with the organization, says Claire Bissot, HR business-development manager with CBIZ, in St. Louis. Over that time the organization may have corrected any issues or actions that led to the termination -- maybe they worked to change the culture or grow the leadership, for example.

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Therefore, she says, training will be a key part of the re-boarding process. "Have the employee go through a full training when they come back and make sure they are getting the same training that a new hire would receive," she says.

Because these types of situations are obviously difficult for all involved, Adelson says, HR's role in keeping things above board will be on full display.

"It has to be done in a professional way that doesn't give the returning employee any further cause to have issues with the employer," she says.

But that doesn't mean that any employer has to tolerate poor performance, however.

"For those people who know about the claim and would have decision-making authority over the employee," Lessack says, "HR should instruct them not to retaliate [but instead] to essentially pretend that the claim never happened, and to treat the employee as the employee would be treated if he or she had never brought the claim. We use the phrase 'Business as usual.' "  

And that same business-as-usual approach applies to situations in which the employee may exhibit performance problems, she says.

"In that event, it's okay to follow the normal disciplinary or counseling procedures," she says, "but tread carefully. Don't jump the gun on writing somebody up, but act consistently with how other employees have been treated." HR should definitely be in regular contact with the employee's immediate supervisor on these interactions or actions, she says.

But business as usual also means not giving the returning employee any preferential treatment, says Nina B. Ries, principal of Ries Law Group in Santa Monica, Calif.

"Giving preferential treatment, treading lightly and taking it easier on [a returning employee] than other employees might send a message that [the returning worker] can now get away with more than [he or she] did before," Ries says.

While a court may have ruled that she can return to work, says Ries, that does not mean the worker "has the unfettered right to do whatever [he or she] wants without facing consequences."

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