Encouraging An Employee To Reapply May Undermine A Retaliation Claim

The video that we released earlier today discusses how an employer’s invitation to a terminated employee to “reapply” for employment may help defeat a retaliation claim. We discuss this issue in our retaliation paper.

In short, in appropriate circumstances, employers should consider extending offers to reapply to employees when they are terminated. The best place to do this is in the termination letter. So long as the offer is bona fide, the employer can argue that it significantly undermines a retaliation claim – an argument that some courts have agreed with. See, e.g., Cooper v. Wyndham Vacation Resorts, Inc., 570 F. Supp. 2d 981, 988 (M.D. Tenn. 2008) (fact that the employer suggested that the sales representative, who was fired for excessive absenteeism after she filed a workers’ compensation claim, could later reapply for a job undercut her claim of retaliation); Oguezuonu v. Genesis Health Ventures, Inc., 415 F. Supp. 2d 577, 588 (D. Md. 2005) (granting summary judgment against retaliation claim and relying on the fact that plaintiff’s “termination letter invites her to reapply when she is able to return to work”); Greene v. Dialysis Clinic, Inc., 159 F. Supp. 2d 228, 240 (M.D.N.C. 2001) (granting summary judgment for the defendant on a retaliatory discharge claim in part because the defendant invited the plaintiff to reapply for a position when one became available).

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