Whether new hires or rehires, business needs should drive timing after a layoff

Q         We laid off workers because of a slowdown, but now business is picking up. How long after a layoff should we wait before hiring again?

A   There’s no precise rule for when you can begin to hire to replace laid off workers. Beginning the hiring process shortly after a layoff, however, amplifies the risks inherent in every layoff. Unless there is a dramatic business change justifying a need to hire new workers only a few months after a layoff, the longer the employer waits to begin hiring, the better. Hiring new workers after a year is safer than at six months, but business needs should drive the timing decision.

Every layoff creates a risk of unlawful termination claims under various state and federal laws, policies, and case decisions. The laid off worker wonders “Why me?” and asserts discrimination or retaliation. For example, a pregnant woman chosen for layoff could make claims of wrongful termination under a number of state and federal discrimination laws. A legitimate layoff decision, however, can be a defense to such claims when offered as a nondiscriminatory reason. Employers argue they had a need for layoffs and a nondiscriminatory and fair process for choosing those to be laid off.