Last week, Meta came under scrutiny for a workplace practice that rarely sees the light of day: keeping “do not hire” lists of former employees, according to reporting from Business Insider.
While relatively rare, keeping a “do not hire” list is not unheard of for companies and HR teams, which use them to flag workers who may have been let go for serious infractions. But the way a company creates that list is critical to both its own operations and future job applicants. Adding everyone from a recent layoff to a “do not hire” list, for example, would be a big mistake, according to Dan Kaplan, managing partner and co-head of the HR practice at ZRG Partners, an executive search firm.
“As business conditions change, talent needs change and someone who is redundant today may be a critical rehire in six months or a year,” he says.
And although do-not-hire lists are technically legal, they can also still open companies up to risk, says Spencer Hamer, a labor and employment lawyer at FBFK law. For example, if the list prohibits the rehiring of people based on age or race, or contains a disproportionate number of people from a specific minority group, the practice could be deemed discriminatory.
“Any employer engaging in such a practice would need to be sure that legitimate, non-discriminatory reasons support the ‘no hire’ designation, and that such reasons are applied consistently,” he says.
One way companies can ensure departing employees don’t reapply is to simply include a no-rehire clause in severance agreements, says Alice Jump, employment lawyer and partner at firm Reavis.
If a company wants to keep a “do not hire” list, it should keep some best practices in mind. HR teams need to include proper documentation explaining why each employee is on the list. They should also keep that information limited to the HR department rather than shared across teams, says Rebecca Trotsky, chief people officer at employee relations software company HR Acuity. A failure to do so may allow managers to create their own lists without clear and consistent reasoning. “This causes damage to any kind of trust built in the workplace,” she says.
