Employment & Labor Insider

Are you perfect? So am I. But I’ve been told that there are people in the world who sometimes make mistakes.

Sometimes employers do things that they think they have a perfect right to do. Then, after it results in a discrimination charge or lawsuit, they call their attorneys.

(Better to do that in advance, folks. Our laws have become ridiculously complex. It's easy to make mistakes, and it gets easier every day.)

Sometimes their attorneys have to tell them that, yes, as a matter of fact, they did mess up. Yes, they do have legal exposure. And, yes, they may lose on that charge or lawsuit.

The damage is done, so what can an employer do?

What got me thinking about this relates to my post of last Friday, about the 90-year-old volunteer who was terminated for violating the diversity, equity, and inclusion guidelines of a nonprofit because she asked why preferred pronouns were included in signature blocks. I said that if the incident happened the way the volunteer and her daughter described it, the nonprofit should apologize and offer to bring her back.

Well, lo and behold – the day before yesterday, the nonprofit issued a public apology and said that it was trying to get in touch with the volunteer to see whether they could work together again.

(They must have read my post!)

Many on social media refused to accept the apology, saying that the organization apologized only because of the terrible publicity that ensued after the volunteer was let go. Quite a few people announced that they would never donate to the organization again, notwithstanding the apology.

Whatever. I thought it was great that this organization publicly apologized. And even better that they’re trying to reconcile with the volunteer. This world would be a better place if more of us would apologize. 

And if more of us would forgive.

The unconditional offer of reinstatement

Of course, our 90-year-old volunteer was not an employee, so as far as I know, she would not have been able to sue the organization for cutting her loose. (Bill Goren of Understanding the ADA notes that, with the right facts, a volunteer could have a "regarded as disabled" claim under Title III of the Americans with Disabilities Act, which applies to public accommodations. Thanks, Bill!)  But for employers who mess up with their employees, the legal system has a concrete way to make amends . . . in addition to an apology, if warranted.

It’s called the “unconditional offer of reinstatement.” Here’s how it works.

You terminated an employee, and about a month later, you get a demand letter from the ex-employee’s attorney pointing out all the things you did wrong. You investigate and consult with your employment counsel, and you determine that, whoa, you did do wrong. This employee should not have been terminated.

It's not the end of the world, your attorney tells you. You can make an unconditional offer of reinstatement with back pay going to the date of termination.

So your attorney sends a response to the employee’s attorney acknowledging that the employee was terminated as a result of a mistake and offers the employee his old job back at the same pay rate as before, plus back pay for the period that he was out of work. (You may also have to either reinstate benefits retroactively, or if that's impossible, compensate the employee for any claims that arose during the period from termination until his benefits can be reinstated.)

If he accepts the offer, then you do have to bring him back to work. But if you shouldn’t have fired him in the first place, then that may not be so bad.  

But let’s say he tells you to drop dead. Because of the offer you made – which he refused to accept – your liability for back pay is cut off as of the date of your offer. As a result, he won't be accruing back pay and benefits for years and years while the litigation drags on.

His case hasn’t lost all of its steam, but it’s lost a lot.

via GIPHY

Oh, yes it does!

Back to our "non-PC" 90-year-old

Let’s go back to this nonprofit, and let’s pretend that the 90-year-old volunteer was an employee. The 90-year-old questioned why people had pronouns in their signature blocks. You explained that they were being inclusive. She retorted that it didn’t seem very inclusive to put “she/her” in signature blocks because that excluded males. You were offended by her question and retort, concerned about how transgender coworkers would take it, and concerned because you thought (incorrectly) that the law required people to include preferred pronouns in their signature blocks. You believed the right thing to do was to terminate her. So you did.

A few days later, you talked to your lawyer and learned that the Equal Employment Opportunity Commission says only that employers and employees should use others’ preferred names and pronouns. And the EEOC even provides a little leeway for good-faith mistakes. (You also have to avoid discrimination or harassment based on gender identity, of course.) After hearing this, you felt bad for firing a 90-year-old employee, who had only asked about preferred pronouns and, at worst, made a mildly snippy response to your explanation. Meanwhile, on social media hundreds of thousands of people were vowing that they would never donate to your organization again. (Most of them never had, but still --)

It's been less than a week since the termination. You call your 90-year-old employee and make an unconditional offer of reinstatement with five days’ back pay. Since it all happened in the same month, her benefits haven't ended yet, so there's no issue there. Then your public relations team puts together a public apology and posts it on social media.

Even if your employee decides not to come back, and even if that nasty mob on social media never forgives you, you’ve taken a giant step toward minimizing your legal exposure. And that's a good thing.