Employers may also update their performance evaluation and documentation practices in light of AB 749. When an employee is fired for performance issues, those issues are not always reflected in that employee`s personal file. But many employers add on their application form a question about whether the candidate has ever worked for the company. If the question is affirmative, the employer has the right to verify the applicant`s old employment history and refuse reinstatement on that basis. In particular, if the applicant`s former supervisors participated in a „grade inflation“ and provided information for each high performance assessment or did not include other performance issues in the applicant`s assessments, it may be more difficult to justify a refusal to hire the second time. If the candidate was judged honestly during their previous employment, the employer is in a better position to support a refusal to reinstate. California employers have until the end of the year to review your transaction agreements and, if necessary, review them to comply with this legislation. While you are preparing for these changes, we advise you to contact your regular fisher Phillips attorney or one of the lawyers in one of our California offices: see Tom Gilroy, EEOC opposes settlement clauses that prohibit a new application and reinstatement of bars, BNA DAILY LABOR REPORT, April 4, 2008, at C1 (noting, that „the Agency rejects both the `no hire` and `no re-apply` agreements, as these clauses „are not good public policy, as they could almost be considered as retaliation for the assertion of a right to discrimination“). At a meeting of the ABA Labour Law Division on 3 April 2008, an EEOC lawyer stated that the Commission would oppose so-called „non-reinstatement“ or „re-application“ clauses in settlement or employment contracts. See suitsintheworkplace.com/blogs/archive/2008/04/05/827.aspx. However, the relevant case-law seems to suggest exactly the opposite.

To date, the courts and the EEOC have upheld settlement or other agreements that do not contain provisions on re-employment. See Jencks v. Modern Woodmen of America, 479 F.3d 1261, 1265-66 (10th Cir. 2007) (confirms that the District Court found that the worker had waived the employer`s right to rehire or reinstatement in an enforceable compromise agreement and that such an agreement was a „legitimate and non-discriminatory ground for rejecting the worker`s claim“); Austin v. Spirit Airlines, Inc., No. 08 Civ. 60540, 2008 WL 4927003, at * (S.D. Fla. Nov. 17, 2008) (at the request of the application of a settlement agreement obliging the applicant to enter into a full settlement agreement, including a re-re-re-re-.

Salerno v. . . .