Does Your Employer Have to Consider You for Rehire After You After a Layoff
My question involves labor and employment law for the state of: Texas
In February 2014, I was laid off with around 60 other employees. The reason given was "budget-related", and I was classified as eligible for rehire. I am 54 years old.
Earlier this month, I saw that my former employer was advertising my former job. The description and requirements describe my former job practically verbatim to my original job description. Since I was classified as eligible for rehire when laid off, I applied for the job, but have heard absolutely nothing at all. During my time at this employer, I was never reprimanded or "written up", and my performance appraisal rated me as above average.
Two people have told me that if I am not interviewed for this job, this is considered age discrimination. These people are NOT lawyers, but they manage companies and hire/fire people.
I have gone through EEOC.gov for a while but can't find any information pertaining to my situation. Can anyone comment? Being in Texas, I can't see any legal reason why my former employer is required to consider me for rehire.
Re: Must My Former Employer Consider Hiring Me for My Former Job After a Budget Layof
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Two people have told me that if I am not interviewed for this job, this is considered age discrimination. These people are NOT lawyers, but they manage companies and hire/fire people.
while there could be age discrimination involved, failing to interview is not in itself proof of age discrimination.
Unless you have a contract or a collective bargaining agreement in place where they are required to interview or hire you after a layoff, they are not obligated to do so. Unless you can show they did not interview you because of your age, it is not possible to prove there is any age discrimination.
Re: Must My Former Employer Consider Hiring Me for My Former Job After a Budget Layof
In no state is an employer required to bring back former employees no matter what their rehire status. The only exception would be if you have a legally binding and enforceable contract or CBA that expressly and in so many words gives you guaranteed rehire rights.
As j/k says, it would take more than not bringing you back to successfully claim age discrimination. If they brought back all the former employees under age 40 but none of the ones over age 40, you might have a claim. But if they don't bring back anyone, or if they bring back a mix of over and under 40's, an age discrimination claim would likely fail.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
It could simply be a matter that when your application was pulled for potential consideration, a manager did not feel you were the best person they could hire or rehire. I had many employees I would rehire. That did not mean they would make the top 4 in a pool of applicants based on my prior experience with them.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
While I do agree with the other posters, I am not sure that the EEOC would entirely ignore a situation where people were layed off due to budget issues and not called back when they needed people again, and those employees were over 40. It might not hurt to attempt an EEOC claim...it might not result in anything, but it wouldn't necessarily be disregarded either.
Its not unheard of for a company to attempt to reduce payroll by laying off older workers at higher pay scales, so that they can hire younger workers for less pay...or to lay off older workers so that they can hire younger workers with less benefit costs. The worst that can happen if an EEOC claim is filed is that it fails.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
We don't know that "people" were not called back. We know that one employee was not called back and that she is over 40. That's hardly enough to support a claim.
True story. Former employer ran an ad for a job opening. We had multiple applications, and we hired the best person for the job, who happened to be over 50. Several months later, a new position was created internally, she applied for it and got it. We ran an ad for her old position. One of the applicants, all of a sudden, screamed (during the middle of the interview), "I remember you people now! I applied here once before and I didn't get the job! You discriminate based on age!" and stormed out. She was AT LEAST ten years younger than the woman we hired.
Point being, there could be a dozen different reasons why the OP hasn't heard back, including that they're still reviewing resumes. It's WAY too early to assume that her age has anything to do with it.
And there's nothing illegal about letting higher-paid workers go in favor of lower paid ones.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
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cbg
We don't know that "people" were not called back. We know that one employee was not called back and that she is over 40. That's hardly enough to support a claim.
True story. Former employer ran an ad for a job opening. We had multiple applications, and we hired the best person for the job, who happened to be over 50. Several months later, a new position was created internally, she applied for it and got it. We ran an ad for her old position. One of the applicants, all of a sudden, screamed (during the middle of the interview), "I remember you people now! I applied here once before and I didn't get the job! You discriminate based on age!" and stormed out. She was AT LEAST ten years younger than the woman we hired.
Point being, there could be a dozen different reasons why the OP hasn't heard back, including that they're still reviewing resumes. It's WAY too early to assume that her age has anything to do with it.
And there's nothing illegal about letting higher-paid workers go in favor of lower paid ones.
Huh...oh heck there is...you KNOW that.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
Only if you assume that all highly paid workers are over 40 and all lower paid workers are under, which is by no means the case.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
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llworking
Huh...oh heck there is...you KNOW that.
an employer can take every senior employee and terminate them and retain the junior employees because the senior employees make more money. As cbg stated, unless the laid off employees, in a great percentage, are over 40 and the juniors just the same under 40, there is nothing illegal about it.
Age is critical in making such a determination. While I do not believe all laid off employees must be over 40 and all junior employees to be under 40 to be able to make and prove a valid age discrimination suit, any time there is a mix, it does make such a claim harder to prove.
In other words: the company can't fire everybody over 40 and one guy under 40 and not be considered as a discriminatory act. They don't get to throw in the token under 40 or keep the token over 40 and not be scrutinized for age discrimination.
Re: Does Your Employer Have to Consider You for Rehire After You After a Layoff
No, and I didn't say they could.
But if it weren't a breach of confidentiality for which I could be fired, I could take you into work with me and show you the records of dozens of people in their thirties making twice what I am in my mid-fifties.
It's just as illegal to fire someone because of their age and pretend it's because of their salary as it would be to blatantly announce that it's because of age. But being over 40 does not make one bulletproof if it really is because of salary. It IS legal to lay off on the basis of salary, and to assume that it's always an age pretext is just plain wrong.
On the basis of the facts we have available to us, and are not just making up as we go along, there is NO reason to assume age discrimination. I'm not denying that additional facts *might* change the answer, but it's just as likely that additional facts *won't* change the answer either. ONE person, who happens to be over 40, has not yet been called back after a posting "earlier this month" - that month being one in which it is not at all uncommon for people to be out on vacation and it to take longer than usual to respond to applications. We know nothing about what's happened with other employees, or their time frame for response, or the ages of other applicants. It's WAY too soon to be drawing any conclusions.