Responding to a reinstatement offer

Determine whether the offer of reinstatement is unconditional

When presented with an offer of reinstatement, the employee’s lawyer must initially determine whether the offer is a bona fide “unconditional” offer of reinstatement. If it is not an “unconditional” offer of reinstatement, it can be rejected without fear of having a negative impact on the employee’s case.

A conditional offer of reinstatement is one in which the employer places conditions of the offer such as a requirement that the employee release or waive any claims that he or she may have against the employer.

Determine whether the offer of reinstatement is bona fide

After ensuring that the offer of reinstatement is unconditional, the employee’s lawyer must determine that the offer is bona fide.

Generally, this is a more difficult determination because the employer’s true intent will typically remain hidden. The employee’s lawyer will look for witnesses who might have knowledge of the decision-making process surrounding the offer and attempt to determine from them why the employer has made the offer.

If a witness with knowledge of the decision-making process is willing to sign a declaration attesting to the fact that the employer is only making the offer as a legal stratagem to cut off your damages and that the employer does not want the employee to accept the offer, the employee’s lawyer can probably have the employee reject the offer because it is not bona fide.

However, merely because the employee can reject the offer does not necessarily mean that it should be rejected. There are two reasons for not rejecting an unconditional offer of reinstatement on the grounds that it is not bona fide:

  • First, many federal judges (who tend to be conservative and hostile to both employees and employment discrimination/harassment cases) will look askance at arguments that an employer’s offer is not bona fide. These judges will look at the reinstatement offer letter and ignore extrinsic evidence suggesting that the offer is not bona fide.
  • Second, the employer may actively hope that the employee will reject the reinstatement offer because the employer has no interest in seeing the employee return to work. Hence, far from minimizing the value of the case, acceptance of the reinstatement offer creates leverage such that in any settlement the employer will not only pay to resolve the claims but will then pay more money in exchange for the employee’s resignation.

Determine whether the offer of reinstatement is identical to the former position

Assuming that the offer of reinstatement is both bona fide and unconditional, the employee’s lawyer will consider whether the offer is virtually identical to the former position in terms of promotional opportunities, compensation, job responsibilities, working conditions, and status.

Often, the purported unconditional offer of reinstatement will be vague, providing merely job title and compensation. The employee’s lawyer may draft a letter to send to the employer making further inquiry if the offer is vague. The letter might sound as though the employee is reasonably considering the offer.

If the offer is for a different position than the one the employee previously held, the letter might ask for a detailed description of the job duties and responsibilities for the new position and assurances that the position offers the same promotional opportunities as the position previously held.

If the employee has never heard of the position being offered, the letter might seek to determine whether the offered position has been created just for the employee. The fact that a position has been created just for the employee is strong evidence that the offer is not a bona fide offer and that the offered position is not virtually identical to the former position because a “made up” position is not a real position.

Additional considerations in discrimination or retaliation cases

In cases involving discrimination or retaliation, the letter might also seek to determine what role, if any, the discriminator/retaliator will have with respect to the employee’s position.

Similarly, in cases of harassment, the letter might strive to determine what steps the employer has taken to ensure that the harassment will not again occur.