New Position - Former Employee - Potential Claims?

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In January we let go our Administrative Assistant. We gave her 2 week’s severance and a month of healthcare in exchange for a release of future claims. We told her the truth that the position was not needed. She is a minority female over age 52 and we parted on good terms. No one has been in that position since.

The Administrative Assistant job mostly did clerical work and answered the phones. We had hoped it would progress to more but it did not. While we were happy to have a person on the phones, without feeling we could expand that person’s role we eliminated the position and switched to a call tree (instead of live answer), then divided the clerical work among existing staff.

We would now like to hire a newly created position of "Services Coordinator" that will not answer phones and will do tasks that are clerical in nature but of a higher level and more closely related to property management tasks than were being done by the AA. The position will also pay more than the AA was paid. Some tasks will overlap from the AA job.

Is the company opening itself up to any issues by:

  1. Hiring for a job that while different has some of the same tasks as the AA position
  2. Hiring someone who is younger and not minority (this is not the intention on purpose -- just asking whether this is an issue if it occurs)
  3. Denying her an interview as a past employee

I would hope being an at-will state and the fact that she signed a release the company would be okay, but just want to check. ?


The employer is entitled to hire the best qualified individual for the new role that it creates. This may or may not be the former employee in question (certainly it is possible for her to have obtained new skills in the interim that may qualify her for the role, and if she did so, the employer would do well to take this into consideration). If the former employee applies for the new position but is not selected for it, and then challenges the decision not to hire her (or perhaps even not to interview her), in order to marshal a viable defense the employer must ensure it has a legitimate justification for its decision to deny her an reemployment opportunity and instead to extend a job offer to someone else. Certainly the optics and timing would not favor the employer if the individual selected is, for example, "younger and not minority," but this alone does not give rise to an actionable claim for discrimination. Ordinarily a plaintiff would have to demonstrate, in order to prove a claim of unlawful discrimination, that it was protected class status (i.e., age, race/national origin, etc.) and not qualification/skill set or other neutral, legitimate criteria, that was underlying the employer's hiring decision.

The employer is within its rights to make business decisions along the lines described. To the extent the employer deemed its Administrative Assistant position was no longer needed in the organization back in January, it had discretion to eliminate that role and you indicate it did so, terminating along with it the employment of the then-incumbent. You advise that the employer "switched to a call tree instead of live answer and divided the clerical work among existing staff." Now, several months later, the employer has made another business decision to create a new position of "Services Coordinator." While you indicate that this position will absorb some of the clerical tasks previously done by the Administrative Assistant, overall this role will be "higher level" and more closely related to a property management role than an administrative/clerical one. Owing to its higher skill and enhanced responsibilities, it will also pay more than the prior Administrative Assistant role paid. As noted, the employer is well within its rights to create this new position and recruit a qualified candidate to fill it.

Relative to recruitment and hiring for the new position, the employer would do well to ensure its efforts in this regard are lawful, legitimate and non-discriminatory, and that it does not exclude from consideration any applicants who appear qualified for and are interested in the role (including, perhaps, the former Administrative Assistant). Without knowing what the terms of the severance agreement are, we cannot opine as to whether the former Administrative Assistant has any rights or entitlement in connection with the employer's effort to recruit and hire for the new role. Certainly if the contract affords her the right of first refusal or similar entitlement, the employer would do well to adhere to its obligations (please note that within the format of our HELPLINE service we are not able to review documents). If the contract does not address eligibility for rehire, or right of first refusal for new positions, etc., then presumably the former employee has the right to apply for the new position just as any other applicant would. If she does so, the employer should consider her candidacy for the position just as it would any other individual who applied for it. We advise against summarily denying her an interview "as a past employee," but of course if there are other, better qualified candidates for the position and the employer chooses to interview them instead, the employer is not required to offer the former employee an interview (or the job) solely because she previously worked for the company.


Published Date:June 15, 2021

Categories: HR Question of the Month