Why It Should Be Unlawful for Companies to Ask or Answer the Re-hire Eligibility Question

The inclination is to believe the worst about the job applicant when a previous employer indicates that they are not eligible for re-hire, even when the reasons are not made clear to the inquiring employment recruiter. Unfortunately, when unpleasant circumstances under which an employment prospect parted ways with a previous employer are evident and favorable for the job candidate, their honesty would most likely be seen as bad-mouthing the previous employer. The truth is that companies might be and very likely are missing out on the very best employees in basing decisions not to hire employment candidates on a current or previous employer’s indication that they are ineligible for re-hire...

Frequently, employees who are top performers are singled out for disparate and unfair treatment because they are excellent at their jobs; for example, the excellent employee reasonably invests more time into correctly performing tasks that require more attention. Other employees complain that the employee is moving too slowly, though they all complete their tasks prior to the end of the shift...

The excellent employee not only took the time to accurately perform their tasks, a considerable portion of this time is spent correcting other employees' work; for example, the mediocres have placed considerable amounts of merchandise in the wrong place. The excellent employee straightens it all out before adding additional merchandise.

Though the excellent employee was never endeavoring to show anyone up and only wanted to do a good job, the mediocres are intimidated nonetheless, and venture to make the work environment as uncomfortable as possible for the actually exemplary employee, who may have jumped into the fire for appropriately defending themselves or addressing bullies.

This is not always the case, of course. The point, however, is that any qualified candidate stands a 50-50 chance of being a good fit for a job, regardless of how the re-hire eligibility question is answered; and because contradicting a slanderous previous employer is not typically welcomed, it should be unlawful to ask or respond to the question of whether or not an applicant to another company is eligible to be rehired. In some instances the responder on the other end of that call might be the actual villain and the individual who would otherwise be denied employment might be the saint who happens to be exceptional at the job that a recruiter is endeavoring to fill...

If asking the re-hire eligibility question does not become unlawful any time soon, however, I’m challenging all hiring managers to make a point of hiring or at least interviewing individuals who previous employers have indicated are not eligible for rehire. Ask the applicant to clarify what happened with the previous employer who indicates that they are not eligible to be re-hired, listen with an open mind, and be objective and fair in judgment...

The result could be acquiring the individual who is actually the very best candidate for the job and simultaneously disarming a malicious practice that has historically contributed to chronic and undeserved unemployment and suffering and helping other companies to realize the good in mimicking the practice.  

How to Let Go of the Exceptional Employee Who Wants to Pursue Other Interests

It should help to imagine that the highly resourceful employee or former employee that you/your company might want to acquire or hold on to may have invested quite a bit of effort into preparing themselves education-wise and/or by acquiring skills to qualify for a position of interest outside of your company.

Consider, especially if the exceptional employee or former was bullied or harassed on a token of envy for the very same talent or skill for which you’d like to retain them, that no one, especially not an exceptional worker, deserves to be held captive in a hostile environment.

Consider economic hardships faced by the employee or former during any periods when work is unavailable to them, and if they are not paid during those spans. Or consider that the individual might have minor children, and their safety is compromised if the employee or former is unable to acquire or sustain affordable childcare, and your company makes no such provisions, or the provisions are not available during a particular shift that they work, whereas an opportunity of interest to the employee or former would either make those provisions and/or pay enough so that they could afford to pay for childcare.

If that doesn’t help, consider that if your company and employees and/or former employees are in an employment-at-will state, and no valid/current contractual agreement exists between you, any endeavors to hold the employee against their wishes, i.e. discouraging other companies to which they’ve applied from hiring them, for your benefit, is an actionable violation of their rights...

If you’ve properly treated the employee or former, chances are they’d be willing to maintain a professional relationship with you/your organization and be accepting of any requests for your assistance in solving any tough problems like they do best.  If you haven’t properly treated the employee, let the experience serve as motivation to do better moving forward…