By:  Ruth Kraft, Esq. 
Nothing will trigger a potential discrimination claim as fast as loss of employment. Age discrimination is the most likely legal action. Pursuant to the Age Discrimination in Employment Act (ADEA), layoffs based on age or that adversely affect employees age 40 or older are prohibited. To the extent that older workers are affected, employers will often assert that non-age related criteria, including performance, are the motivating factors.

As much as employers like to soften the blow by offering laid off workers letters of recommendation, if you do so while claiming that the layoff was performance based, a jury could certainly find that the praise negated the purported reason for the separation.

The use of age related factors in evaluating employees for layoffs is not, per se, discriminatory. Reliance on factors other than age, such as seniority, salary or pension status, all of which are interrelated with age, does not violate the ADEA.

Another thing to watch out for is the pretextual reason for termination. If you give a false reason, a court could find, based on the evidence, that the fundamental driver of the discharge was discriminatory. I am not a fan of telling employees that they weren’t good “fits” because it is such an amorphous statement. In one notable case, while telling the employee this, the employer was found to have created a spreadsheet with which it evaluated workers which included age. As my husband’s mentor used to say, if you are going to do something, don’t do that!!

Employers should consistently apply the same objective criteria for its reduction in force decisions. Numerical rankings of all employees subject to layoff as well as substantive evaluations are important. Certainly, qualities such as leadership and teamwork as subject to interpretation but these don’t have to be tossed aside so long as your evaluation includes specific competencies in a variety of areas. And, honestly, long before you are at the point of a RIF, you should have created meaningful job descriptions and criteria for evaluations, which should be performed at least annually, if not with greater frequency.

To create a strong record of a layoff:

o Clearly express the business reasons behind the reduction in force to employees such as decreased volume, increased expenses, department mergers or implementation of new technology;
o Create and use nondiscriminatory criteria for the layoff process, such as seniority, performance, job skills and job elimination;
o Document the reasons for the layoff in your business records, alternative actions considered or implemented by the company, and the criteria for layoff;
o If performance is a consideration, then it should have been documented in objective evaluations.

 

 

 


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Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.