She never applied — how can she sue for hiring bias?
September 24, 2009 by Sam NarisiPosted in: Law, Special Report
When the economy begins picking up, companies will need to consider whether they want to rehire employees who’ve been let go. Not handling that question properly got this company tangled up in a big court battle.
An employee was laid off when the company decided her department was overstaffed. The company offered her transfers to a few other positions, which she turned down for various reasons. She also inquired about other openings for which she wasn’t qualified.
Eventually a job opened that the ex-employee was qualified for, and the company’s HR manager called her to discuss the position. She said she was interested but claims she got no further information about the offer.
When she found out a few weeks later the job had gone to someone nearly 30 years her junior, she sued the company for age discrimination.
Who takes the next step?
The employee claimed she was told the job was hers, then never contacted again. But the company argued it put the ball in her court. The HR manager said she probably would’ve been given the job, but she never sent in an application, so she was never officially considered.
Who’d the judge side with?
The employee. The court noted previous offers the company made to her, which appeared to be straight offers without the need for applications or interviews. The inconsistency looked suspect to the judge, who denied the company’s motion to dismiss.
You know what that means — a hefty settlement or a long, costly trial.
Cite: Owens v. Wellmont, Inc.
September 25th, 2009 at 1:09 pm
The company should get a better lawyer. If the info provided in the article is accurate and true to the situation then yes the employee would need to re-apply for any open positions. When the employee was offered the other positions she was still an employee of the company, but she is now an inactive employee she would legally need to apply for an open position. While an active an employee the job transfer is exactly that a transfer in responsibilities or promotion/demotion. I don’t think the company did anything wrong.
September 25th, 2009 at 2:32 pm
If the HR Manager contacted the prior employee, they should have followed through to keep the employee informed on the position. You have to ask, “Did they promise her the job?” Or “Did they tell her there was an opportunity?” I can’t imagine they would ‘offer’ the job without following a formal process – reapply, interview, etc. Why deviate from the normal process just because she was a prior employee? The key word is prior, so she should have been treated like any other applicant. They dropped the ball and set themselves up for problems due to their negligence.
September 25th, 2009 at 3:09 pm
From the information that was presented I see that the company was at fault. First, there should be a written layoff and recall policy included in the employee handbook. Part of the recall policy should include the company keeping the laid off employee on a recall list and calling her back to work in writing via Certified Mail Return Reciept. This would have shown the judge consistantcy.
September 25th, 2009 at 3:11 pm
One last word. This incident shows the importance of having carefully drafted policies and procedures that are enforced on a consistant basis.
September 27th, 2009 at 8:04 pm
The former employee is now a candidate and not an employee seeking a transfer or reassignment. The HR Manager should have reviewed the steps involved in order to be considered for the position which would be the same steps for any candidate, i.e., complete an application prior to the deadline, be interviewed and, if qualified, receive an offer. Without making the extra effort to help the former employee understand their change in status to that of candidate and outlining the hiring process, the HR Manager dropped the ball.
September 28th, 2009 at 9:48 am
The ruling case is fair. There is no need for additional legal assistance. If the (ex) employee was required to complete an application (which she should have as an internal or an external candidate as a bid), then the company is not being consistent. The facts are: The candidate never had to complete an application prior when she was offered comparable positions for those that she qualified for and those that she did not. If the other applicant was a new candidate who has never worked for the company then YES, just like all companies they must apply. This person had worked for the company before. Legal suites are all stemmed from company’s inconsistencies. There are a few pieces missing from the puzzle which is: The company’s bidding process was she offered the positions that were turned down, before of after layoff. The preceding say “Eventually” does eventually mean she was still with the company or let go? Either way there were still inconsistencies and more than likely the company did not have a CLEAR policy on bidding on internal positions.
September 28th, 2009 at 3:23 pm
Since the company contacted the ex-employee about the job, I believe the company had an obligation to instruct the ex-employee on the procedure for obtaining the job for which the company said she was qualified to hold. I, too, believe there are some missing pieces to the puzzle. Otherwise, why did the company call the ex-employee to discuss the job? However, once the ex-employee had been contacted about the job opportunity, did it ever dawn on the ex-employee to get in touch with the company to find out what she needed to do to secure the job or ask when she was to start the job? I wouldn’t just sit out there in “uncertainty” and wait a few weeks doing nothing after I thought I was offered a job. There must be more to the story. But, based on the article, the company made an expensive goof.
September 29th, 2009 at 1:11 pm
Based on what is written in this article, if I had been in the position of the HR manager, I would have contacted the employee again to make sure she understood she needed to “apply” for the position. I would particularly do this since she seemed interested during the first conversation. I would have probably done this via e-mail, if at all possible, to be able to document my contact and instruction to the former employee. If the position was in her old department, I wouldn’t think an interview would be necessary. But if the position was in a different department, I would want to make sure she understood she would be considered, but not necessarily awarded the job, based on her skill, ability, knowledge and experience and that a formal application of some sort needed to be generated by her to include her in the candidate pool. While this technically shouldn’t be necessary (the additional contact), it certainly wouldn’t hurt.
Of course, I’m assuming they really did want to consider her for the position. Why else would they have called her? It sounds as if they didn’t owe her the courtesy, but we don’t know what their standard policy was, so it’s hard to say. That’s why I’m assuming they did want to consider rehiring her.
I always make contact via e-mail or letter. It provides documentation of what was communicated, but it also gives the candidate something to refer back to in case they didn’t fully understand what was said. That has been my policy for many years and if this HR manager had utilized the same strategy, the outcome might have been different.
September 29th, 2009 at 2:13 pm
From the information provided the employee was not being offered a position within her former department, thus the employee was not being recalled from her layoff. If the company has a layoff / recall policy it should not pertain to laid off employees being eligible for different or new positions it should only pertain to the exact position he/she was laid off from. The HR Manager probably should have been more direct with the steps the employee should have taken to be eligible for the position; however when ever a candidate is to be considered for a job an application must be completed and turned in. If there is no application on file then the employee can not be considered for the job. The only exception to this rule is for a promotion or demotion, and then a job description should be provided to the employee. The only error the company made was probably not explaining exactly what needed to happen in order for the employee to be considered.
October 2nd, 2009 at 1:36 pm
This just goes to show you the importance of a paper trail. In this busy world, many people don’t remember what THEY say or specifically what someone ELSE said. My boss told me yesterday that I depend too much on e-mails for documentation. He also refuses to answer any of my policy questions in writing — only responds verbally, which I then document immediately afterwards to CYA. But please tell me where I’d be if someone claimed something happened verbally and I had no written back-up? I’d lose my job, that’s what.
October 7th, 2009 at 12:23 pm
An important question not included in the article is what was the company’s precedent in handling this type of situation with other laid off workers in the past. Did the company maintain the necessary contact or did they sit back and wait for the employee to make the move in each case?