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July 8, 2021

Hiring new applicants versus former employees

By Colin Barnacle, Christopher J. Eby


In an article for HOTELS, Nelson Mullins partners Colin Barnacle and Christopher J. Eby explain what hoteliers need to know about hiring as the hotel industry starts to rebound from COVID-19. While one school of thought would encourage hotels to rehire former or furloughed employees rather than recruit and train new employees, Barnacle and Eby write that industry experts expect hoteliers to focus on driving profits by hiring fewer and newer, less expensive and less senior or seasoned employees. Others may cut labor costs on a go-forward basis with innovations in self-check-ins and in-room cleaning or by limiting services like turn-down or in-room dining.

“However, as leisure and hospitality employers tackle the question of whether to re-hire former or furloughed employees, or start new with potentially less costly new employees,” the authors write that “there are a handful of legal considerations to keep in mind.

Avoiding claims of discrimination is a risk in situations where the employer will not be able to rehire all employees who were furloughed or laid off. Hoteliers must be able to point to legitimate, objective, business-related factors in the rehiring decisions in their defense of discrimination claims. There is also the newer trend in ordinances that have been passed in several jurisdictions across the country. Commonly referred to as “return to work” or “right to recall,” these laws typically require that employees who were laid off due to the pandemic be given priority to be offered their former jobs before external candidates are considered. Aside from these laws, Barnacle and Eby caution employers to also review the terms and conditions of any applicable collective bargaining agreements to understand if there are any “right to recall” provisions that could take precedence over hiring new workers.