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A Mis-firing?  Bringing Back the Dischargee and Cutting your Losses...



    Employers often overlook the unconditional offer of reinstatement.  
It's a handy tool for cutting off back pay liability.  This can arise in cases where
there was a problem dismissal or the employee quit in protest over intolerable 
job treatment.

    The Ford Motor case from the US Supreme Court (1982) ruled that an 
employer who offers the job back unconditionally can not, beginning on the date the offer was 
to take effect, be liable for back pay that would otherwise potentially accrue .

    Example:  You discover that firing John was not as clean as you thought, 
having learned that Mary, his boss, is a problem manager who kept important facts
from you. If you wait to slug it out with John at the EEOC 
or in court, standing on your defenses, you have exposure with the back 
pay meter running.  Other liability, such as special damages, will be looming as
the case grinds on.

    But instead, soon after you discover the flies in the ointment, you send 
John an unconditional invitation to return to work, one that extends a reasonable offer. 
If it is reasonable, and John accepts it, you have the problem of putting him 
back on the job, but you have no further back pay liability.

    If he rejects the offer, you still have stopped your back pay liability, 
and you can confront John at trial with his refusal to accept the offer.

    The key is that the offer is REASONABLE.  Don't spring it on the dismissed 
employee at the last minute (deliver the offer on Friday and it warns him that he
"better be here first thing Monday morning").  He will be given the job he was 
dismissed from  but if the supervisor is a significant problem, the former
employee should be offered an alternative position in another department, or on 
another shift.  There will be no interruption in benefits, accrued paid time off,
or other monetary terms and conditions of employment. Or, suppose the employee 
quit over a lack of equal opportunity in training and promotional opportunities.
 The offer should address specifically, and guarantee, training available to the 
person upon reinstatement.  

    Courts are persuaded to consider offers reasonable if the employee makes 
genuine concessions that show good faith.