Thursday, December 11, 2008

More on “do overs”: the unconditional offer of reinstatement

As I mentioned on Monday (Do-overs), an unconditional offer of reinstatement can be a useful tool to minimize or even avoid liability in a discrimination lawsuit. To be effective, however, the offer must truly be unconditional. In other words, the reinstatement offer should:

  • Return the employee to the former position, with the same responsibilities, compensation, and benefits.

  • Make clear that the employee is free to continue pursuing any and all claims against the company, and that the employee is not required to sign a release or give up any rights as a condition of reinstatement.

  • Emphatically state that the employer will neither retaliate nor tolerate any retaliation against the employee.

  • Create an open door for the employee to discuss any concerns about returning to work, or issues that arise after the employee returns to work.

Once the offer is made, the employer must be prepared to take the employee back if the offer is accepted. Thus, before making such an offer, it is important to consider if, in fact, an employer really and truly wants the employee back. Was the employee a good, worthwhile, productive employee that provided an asset to the company? Or, did the employee have serious performance, conduct or attendance problems? Are managers and supervisors wiling to take the employee back despite the lawsuit? Are you reasonably confident that the employee will not be retaliated against, and is the company prepared to act quickly and deal decisively with anyone found to have retaliated?

These questions must be considered before deciding whether to offer to bring back an ex-employee. Otherwise, the potential of limiting back pay and front pay may not be worth the cost of brining back an unworthy employee.