posted on Saturday, April 05, 2008 9:51 AM
by
Lou Michels
The EEOC and “No Re‑employment” Clauses
On April 3, at an ABA Labor and Employment Law Section meeting in California, an EEOC attorney stated that the Commission will oppose so-called “no rehire” or “re‑application” clauses in settlement agreements, or any other type of employment agreements. A no rehire clause is typically used to preclude an employee, who has left the company and filed an EEOC charge or a lawsuit, from setting up a retaliation claim by re-applying for work at the same company. As the EEOC surely knows, a former employee applying under these circumstances confronts the employer with a choice: either rehire the employee (who was frequently a problem employee in the first place) or deny the application and set‑up an endless loop of retaliation claims when the employee files a charge saying that the reason she wasn’t hired is because of the previous protected conduct of filing a charge of discrimination.
This is the kind of shortsighted viewpoint that makes the EEOC actually work against its statutory role as a conciliator. In fact, the Commission’s opposition to these clauses reduces the likelihood of settlement or conciliation. Without a “no rehire” provision, an employer really can’t rid itself of claims from the aggrieved employee. It’s not uncommon to see ex-employees try to get a job with a former employer (in a career and location where they feel comfortable, know the job, and may know the personnel) after filing an EEO charge.
The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this.
The speaker at the ABA conference stated that the reason the Commission opposes these clauses is that frequently the employee does not realize how broad in scope the no rehire clause actually is. In other words, the Commission wants to save the employee from her own bad judgment. Saving people from themselves has never been a particularly successful philosophy for a government program and it doesn’t work well here either. Employers should know that if they are involved with the Commission, a no rehire clause may be a showstopper as far as settling the charge or case is concerned.