by Reggie Gay
Q: We have a job applicant who worked for us approximately six years ago. There’s nothing negative in her file, but there were some issues with her job performance. Neither of her former supervisors wants to hire her back. She has applied several times and has received rejection letters, but she keeps reapplying. How do you handle a former employee who continues to reapply for a job despite repeatedly receiving rejection letters?
A: The quick answer is that you probably can’t — or perhaps shouldn’t — stop someone from applying for a job, but that doesn’t mean you have to hire her. As to how to handle your former employee, there aren’t a lot of good options. The best course of action is to continue to follow your job-posting procedures and treat her the same way you treat other applicants.
As with any hiring decision, the general guideline is that you should hire the most qualified individual who will be the best fit for the job and the company. That analysis involves both objective and subjective factors and enables you to have some discretion in the hiring process. Remember, however, that you can be found liable for discrimination against people in certain protected classifications, including applicants and employees protected by the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. Those laws prohibit you from discriminating against an applicant (1) because she is 40 or older, (2) when she is a qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation, or (3) because of her race, national origin, religion, sex, or any other legally protected status.
A rejected applicant can assert a claim of discrimination based on one of those protected classifications, and the employer will be required to explain its hiring decision. You may easily accomplish that by pointing to the education or experience listed on the applicants’ resumes or required by your job application, specialized training requirements, or other objective criteria that would make one applicant more qualified than another. Subjective criteria, such as personality traits, are more difficult to defend and can potentially cause problems.
Mastering HR: Discipline and Documentation
In this particular situation, it appears that the main reason for not hiring the applicant is her earlier unsatisfactory work performance. Unfortunately, it seems that her former supervisors didn’t appropriately evaluate her performance or document her file. I’m also assuming that there’s no documentation indicating she isn’t eligible for rehire. Thus, you have no objective written documentation to support the decision not to rehire her. That could pose a problem if she chooses to challenge the hiring decision.
The former supervisors’ failure to document the employee’s poor performance may also be one reason she continues to apply for a job. If she was never disciplined for or counseled about her poor job performance, she may believe she was a good employee and may be surprised by her supervisors’ opinions. If that’s the case, telling her that she won’t be rehired because of her past poor performance may cause her to believe there are other factors involved, such as discrimination. As a result, you should proceed cautiously in any discussions with the former employee.
You may want to take this opportunity to educate the employee’s former supervisors and others on the importance of documenting poor job performance. Supervisors need to understand that documentation can make or break a case. If an employee’s job performance is unsatisfactory, the supervisor should record that fact in her file. Depending on the severity of the performance issues, the supervisor should consider disciplinary warnings and a corrective action plan.
If a supervisor fails to document an employee’s poor performance or if the behavior isn’t bad enough to document, then the company may have problems asserting any previous performance issues as a defense to discrimination claims. Supervisors need to clearly understand that their failure to document problems can result in liability for the company.
Basic Training for Supervisors, including documentation, evaluations, and hiring
The underlying lesson from this question is that if someone meets the minimum criteria or requirements for a posted job, she is free to apply for it. The employer must appropriately screen applicants to determine which candidate is the most qualified and the best fit for the company. When doing that, you can use both objective and subjective criteria, but you should be able to articulate and establish a legitimate nondiscriminatory reason for choosing one applicant over another. Lastly, failing to properly document poor performance can be costly and create problems down the road.
About: South Carolina Employment Law Letter:|
Excerpted from South Carolina Employment Law Letter and written by an attorney at McNair Law Firm, P.A. SOUTH CAROLINA EMPLOYMENT LAW LETTER is not intended to provide legal advice, which can be given only after consideration of the facts of a specific situation. Contact the attorneys at McNair Law Firm, P.A.