May 26, 2020

“No Backsies?” — Not Rehiring a Recently Retired Employee Can Lead to Liability

Based on a set of somewhat unusual facts, a federal district court in Ohio ruled that an employer that refused to rehire a recently retired individual to his former position will need to argue at a jury trial that its decision was not based on age.  In Rose v. City of Toledo, a 62-year-old employee retired from the City Water Department, and shortly thereafter, applied for two positions within the Water Department (one of which was to be rehired into his former position).  The employer interviewed eight candidates (including the plaintiff). Despite being the third highest scorer on the exam, plaintiff was not hired for any position.  Rather, his former position was filled by the fourth-highest scorer, and the remaining positions were filled by the lowest ranked applicants (all of whom were more than 10 years younger).  At deposition, the employer’s administrator testified that despite his experience doing the identical job, the plaintiff was not selected because he was not viewed as a “long-term” candidate due to his recent retirement.   This statement, combined with the large difference in ages amongst the candidates, created an inference of discrimination.  Thus, the Court denied the employer’s motion for summary judgment.

This ruling is a reminder that business decisions are subject to scrutiny even though they may seem sensible to the one making the decision. Perhaps a better course of action is to adopt a rule barring rehire within a specified period of time after resignation, discharge, or retirement.

Jackson Lewis P.C. © 2020

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About this Author

Timothy J. Domanick, Jackson Lewis, career counseling management attorney, human resources lawyer
Associate

Timothy Domanick is an Associate in the Long Island, New York, office of Jackson Lewis P.C. His practice focuses on employment litigation.

Mr. Domanick has spent the duration of his career counseling management and human resources professionals on many employment law issues. Throughout his career, he has been involved in numerous proceedings before federal and state courts and various administrative agencies.

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