As Maryland moves through Phase Two of its plan to re-open, many employers will need to make difficult decisions about whether they will recall furloughed workers, which workers to recall, and how to recall them. This guide will help employers lawfully navigate the recall process.
Which Employees Should Be Recalled?
If an employer has a pre-existing recall policy (e.g., a seniority system), they should simply follow their policy when deciding who to recall. However, employers who do not have pre-existing policies should be careful to avoid the appearance of discriminatory recall selections. If an employer decides to recall employees on the basis of performance, they should avoid the appearance of discrimination or favoritism by relying on objective factors that can be supported by past performance reviews. Employers who choose to recall employees based on performance should rely on numerical criteria (to the extent that they are available) in order to avoid the appearance of subjective and discriminatory decision making.
Instead of recalling employees based on individual performance, employees can avoid discrimination claims more effectively by adopting a uniform policy to recall employees based on the needs of the business (e.g., recall workers in departments with a greater need for additional workers).
How Should Workers Be Recalled?
When sending recall letters to furloughed employees, there are no technical legal requirements. However, it is wise to include the following information:
- return to work date
- time and location where the employee should report
- employee’s title after recall
- expected work hours
- employee’s new pay rate/salary, as well as the timing of payment
- eligibility for vacation
- date by which employee must respond to the recall notice
Employers should give employees as much notice as possible that they are being recalled. This will give employees time to arrange for child and elder care. Additionally, giving early notice will afford employers time to find replacements if the selected employees have already found other work.
Return to Work Plan
Recalled workers should also be informed of their employers’ “return to work plan.” In order to assuage the worries of returning employees, employers should be proactive and supply recalled workers with the following information:
- notice of any changes made to operations in response to COVID-19
- detailed workplace safety procedures
- COVID-19 related leave and accommodation information
Supplying this information to recalled workers will preempt many of their questions and make them feel safe returning to work.
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