April 29, 2020

Planning For The Rebound: Step 3 – Do Employers Need To Bring Back Under-Performers?

As a result of the pandemic, many employers have been forced to implement varying degrees of employee work reduction, including furloughs or cutbacks in hours. To keep businesses up and running (and profitable), employers have been forced to scrutinize work and job necessities, as well as the actual production value of personnel and positions.

Now that you’re thinking about bringing your employees back to work, you may realize that some were under-performers – or worse, were completely ill-suited for the job, not doing their work, or doing it incompetently. Or perhaps in consolidating workloads for your newly streamlined business, you see a redundancy and realize you do not need certain employees or positions any longer.

While these questions have routinely arisen in the past when an employee was off work on a protected leave, since the pandemic this question has come to the forefront in counseling our clients: What do we do when redundant or under-performing employees are ready to return to work?

Obviously, there is a very human side to the equation that employers take seriously. It’s even more distressing based on the current economy, and the real-life recognition of the hardship many of these employees may face as a result of your decision.

Yet the hard truth is, a resurgence in work may not necessarily mean that we’ll need all of our employees. More drastically, it may mean that under-performers, and performance-related failings uncovered during this downturn, will force employers to make hard decisions on the return to work of many such individuals.

Even without such concerns, do we as employers need to bring these employees back to work, knowing what we now know about their performance from what we uncovered while they were out? There is no easy answer on the human side of the equation.

As to the protection side of the equation, as per pre-pandemic review, each situation should be reviewed on a case-by-case basis. Some employees may fall under the protection of the various leave and other laws presently in place. Generally, however, the information obtained during this time may provide a significant opportunity to address these concerns, or provide a valid basis for employee review or termination.

While this should not by any means be taken as a blanket authorization for termination, it’s critical that such situations be addressed upon a return to work. Counsel should be involved in the analysis and review of these terminations, and you should begin to prepare and maintain whatever information you have uncovered during this downturn to assist in that analysis. Documentation and subjective evidence will go a long way to support these decisions. There will likely be an increase in employee lawsuits as unemployment rates climb, and more employees are unable to find alternative employment – leaving them with an unfortunate, limited option of suing their prior employers.

Make sure you maintain any and all information discovered, preferably in document form as available, or prepare notes of the employee situations where it is not. Be prepared to review this information, and information regarding your general staffing, and specifically alternative employees in the same position if relevant, with your counsel.


Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Greg Glazer in Hirschfeld Kraemer’s Los Angeles office, gglazer@hkemploymentlaw.com, (310) 255-1830.

Did you miss previous posts in our Planning For The Rebound series? Click on the links below:

Step 1 – Requirements For Returning To The Workplace

Step 2 – Do I Have To Bring Back Furloughed or Laid-Off Employees?

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS