Fact Finders: Reopening your business? What employers need to know to stay out of legal trouble

Fact Finders: Reopening your business? What employers need to know to stay out of legal trouble
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TUCSON, Ariz. (KOLD News 13) - Business in Arizona are beginning to reopen their doors this week.

While that means more employees may be heading back to work, owners need to understand was the ‘new’ working environment is like due to coronavirus concerns.

Many businesses have reduced their team through furloughs, layoffs, or paid leave for all or a portion of the time. With a phased approach to reopening expected, one legal expert said there is a risk for employers in deciding who to bring back.

“I think there’s a bunch of things to consider, the first is - does the business have a layoff policy?" said Jessica Post, Director of employment and labor at Fennemore Craig.

Post said businesses should review any layoff policies to make sure they comply with them. Employers also need to consider whether managers made promises to employees during the layoff process.

After considering both policies and procedures, Post said businesses should decide which employees to bring back first based on objective factors, like those with the most seniority, the employees with the highest performance reviews (based on numerical numbers is the safest), or employees with certain skills that are needed first.

“I think it’s easy to make accidental mistakes about who you bring back, sometime for good reason, but then it can kind of cause yourself some problems," said Post.

An example that could cause an issue would be if an employer did not bring back an employee who is over a certain age because he or she is at a higher risk of contracting COVID-19. While the owner may be making that decision due to public health concern, not offering employment to employees because of their age would violate the Age Discrimination in Employment Act. Anybody over 40 is part of the protected class.

Post said businesses should consult with counsel and do so in a manner that minimizes the risk of discrimination and wrongful termination claims.

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