#1 – Avoiding Discrimination Lawsuits
As New Jersey continues to live through the COVID-19 crisis, many organizations are beginning to bring employees back to work and resume operations with some semblance of normalcy. As this occurs, our firm has received multiple inquiries from employers and business owners with a variety of questions about how to safely and legally get their workforce back to work.
This week we will be publishing a series of blogs, and each day we will focus on one common issue employers are facing as employees return to work. Part 1 discusses how to avoid discrimination lawsuits when determining which employees to bring back.
Avoiding Discrimination Lawsuits: Many employers who were forced to furlough or layoff their employees while their businesses were shut down or limited from the pandemic are now offering some of their staff the opportunity to return to work, sometimes under modified terms (such as hours, pay rate, job duties, etc.) either because they have been cleared to resume operations in some capacity or because they are planning to do so in the near future and they want to maximize PPP loan forgiveness, which requires borrowers to meet certain payroll thresholds within eight weeks of loan funding (see point #4 for more information).
However, many employers (who are busy dealing with every aspect of re-launching their business) must not overlook how they go about deciding which employees they bring back to work. Employers who simply pick their top or favorite employees are subjecting themselves to claims of discrimination and potential liability. To prevent claims and lawsuits, employers must carefully analyze their policies and selection criteria to ensure that they are not unintentionally violating state and federal anti-discrimination laws. Importantly, if the method used to select which employees are given offers to return to work results in an adverse impact on a protected class of workers, such as older workers, the employer could be liable for discrimination even if they did not intend to discriminate.
Accordingly, the criteria utilized by employers to determine which employees are given offers to return to work, and on what terms, must be made thoughtfully, carefully (preferably with assistance of counsel), and, most importantly, documented.