Reprinted from the August 20, 2007 issue of PERSONNEL LEGAL ALERT , a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

How Soon Is Too Soon When Hiring On The Heels Of Firing?

How long must an employer wait to replace a fired employee without raising
the stink of discrimination? Is one month long enough? Should it be at least six months? There's no magic number, but there are certain factors to consider that will make the timing of a hiring decision smell fishy to a recently terminated employee.

1. Termination reason. One of the quickest ways to spark a discrimination claim is by telling employees that the company needs to cut costs or that their position has been eliminated, and then shortly after, advertising an opening for the same job. The former employees will invariably wonder whether the reason you gave them for letting them go was legitimate. If an employee is told overhead must be cut, the employee will likely believe the reason is false if it seems the company can suddenly afford to hire someone for the same position.

If, on the other hand, employees are told they are being fired for performance issues, hiring someone to fill the hole left by their departure is a natural result; thus, under those circumstances, hiring someone else immediately is not suspect (though other factors might be).

Smell like a rose: Managers must be truthful when letting employees go. Trying to avoid hurt feelings by focusing on the company's finances and glossing over the employee's issues that played a part in the decision, could boomerang in a bad way.

Your company must also be able to show that it had a legitimate reason for re-staffing (e.g., improved financial conditions, acquisition of a new client).

2. Termination selection criteria. Unless entire job categories or titles are being wholly eliminated, decisions will have to be made as to which employees stay and which employees go.

Smell like a rose: Use neutral selection criteria, such as performance rankings, that will support the termination decisions in court. Use of color-coded rankings during a reduction-in-force (green for positive; yellow for neutral; red for negative) helped a company ward off charges of age discrimination when it rehired some employees, but not a group of 38 employees who had all received red rankings. (Campbell v. Int'l Paper Co., 6th Cir., No. 04-3797, 2005)

And, as stated earlier, tell employees the truth about why they were picked. The reason terminations are necessary may be company finances, but the reason the employees were chosen for termination should also be communicated.

3. The replacement. Hiring someone outside the protected class of the terminated employee is fishy. But what makes the hiring decision even fishier is if the replacement is also not as qualified for the job as his/her predecessor.

Smell like a rose: Your company needs evidence that the replacement is better qualified than the former employee. Be sure you can explain specifically what the job requires that the former employee can't do, just in case you ever have to justify the decision in court.

The need to examine employees'qualifications also applies outside of situations where an employee is being replaced. In the following case, the employee objected when he was not rehired, but his peer was.

A jury awarded a black sales manager almost $350,000 after his and a white sales manager's positions were cut, but only the white sales manager was offered one of two regional manager positions. Working against the company: It lacked evidence that the black manager's performance was unsatisfactory or inferior to that of the white manager. (Ottenberg's Bakers, Inc. v. District of Columbia Commission on Human Rights, DC Cir., No. 01-AA-669, 2007)

4. The position. The other factors lose their potency if you can show that the new hire is not a direct replacement for the terminated employee.

Smell like a rose: All positions should have a written job description. You'll have an easier time defending against a discrimination claim if the new employee's job is legitimately different than the terminated employee's, even if the job title stays the same.

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