Comments on: She never applied — how can she sue for hiring bias?

By: Michelle

Michelle — Wed, 07 Oct 2009 17:23:47 +0000

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?

By: essie

essie — Fri, 02 Oct 2009 18:36:06 +0000

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.

By: Tricia

Tricia — Tue, 29 Sep 2009 19:13:05 +0000

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.

By: R. B.

R. B. — Tue, 29 Sep 2009 18:11:52 +0000

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.

By: Mary D.

Mary D. — Mon, 28 Sep 2009 20:23:46 +0000

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.

By: Stacy Powell

Stacy Powell — Mon, 28 Sep 2009 14:48:14 +0000

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.

By: Karen Page Smith, SPHR

Karen Page Smith, SPHR — Mon, 28 Sep 2009 01:04:02 +0000

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.

By: Wayne E. Bulato

Wayne E. Bulato — Fri, 25 Sep 2009 20:11:33 +0000

One last word. This incident shows the importance of having carefully drafted policies and procedures that are enforced on a consistant basis.

By: Wayne E. Bulato

Wayne E. Bulato — Fri, 25 Sep 2009 20:09:53 +0000

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.

By: Terri

Terri — Fri, 25 Sep 2009 19:32:37 +0000

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.