labor lawAdivision of labor law center

With gas prices increasing, revenue declining and profit margins dwindling, many employers are taking a hard look at 2009 staffing. This may include combining positions, reducing staff by attrition, or laying workers off.

 

According to Sozeen Mondlin, associate general counsel with MITRE Corp, HR managers and employers should give careful consideration to choosing which employees to lay off.

 

“Given today’s economic climate, we all have to expect more activity in this area,” she said at the Association of Corporate Counsel annual conference in Seattle on October 19 to 21, 2008.

 

Mondlin said that employers are often sued by workers who are laid off, noting that “It is notoriously hard for employers to win reduction-in-force cases,” she added.

 

Planning is the key to avoiding liability when laying workers off. A reduction in force, or RIF, can take months to plan and execute well. Although often corporate honchos will want immediate results, taking time to plan pays off in lower litigation costs.

 

According to Mondlin, implementing layoffs in a single unprofitable division, several times, rather than companywide layoffs.

 

Every stage of the decision-making process for layoffs should be documented, and records should include the business reasons for the lay offs. Detailed minutes of all meetings should be held.

 

Employers should be able to document the reasons why a particular individual or group was laid off. The best decisions are based on objective criteria. Basing layoffs on seniority, with the most recently hired employees being fired first, is perhaps the easiest method to defend in court.

 

When layoffs are based on other criteria, such as performance, then those criteria must be carefully documented.

 

Employers should be especially cautious about laying off an employee with an existing employment issue, such as employee relations, benefits or leave issues. Employees who have filed complaints with the company, the EEOC or other regulatory agencies are also a risk, as are those with recent work-related injuries. Any of these employees’ termination can be seen as illegal retaliation.

 

Employers who are laying off more than 50 workers, or closing a facility, may be required to issue federal WARN notices. Several states require similar notices for smaller layoffs.

 

 

 

 

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