Layoffs and Rehires: Who Stays, Who Goes and Who Comes Back?

Layoffs and Rehires: Who Stays, Who Goes and Who Comes Back?

The recession has, obviously, caused many companies to lay off employees; fortunately, some companies are starting to rehire laid off employees. Choosing who stays, who goes, and who comes back can be horrifically difficult, on both a personal and business basis. Consequently, most companies default to a productivity standard - those who produce more are favored over those who produce less. That's just common sense. There can't be any legal problems in that kind of approach, right? Right?

Well ... maybe. One of the most popular lawsuits du jour is being brought by employees who claim that the decision to lay them off or not recall them constitutes unlawful employment discrimination. The problem most frequently arises from the unfortunate (and ever-widening) gap between what makes sense to most executives and managers, and what's legal. The evidence is often a careless email or an offhand comment during a meeting. Some all-too-classic examples:

• "Everybody's going to have to work harder for us to get through this. We need to keep the young blood."
• "She just got married and I know she wants to start a family. We can't afford the maternity leave."
• "He's got a heart condition and can only push himself so far."
• "Remember that sexual harassment claim she filed? She goes -- we need to worry about morale."
  

Depending on the circumstances, there may be a dollars and cents, productivity-based justification for preferring youth over age, not pregnant over pregnant, non-disabled over disabled, and stoic over complainer. But that doesn't make it legal. These kinds of statements can constitute near-smoking gun documentation of unlawful age discrimination, unlawful gender/pregnancy discrimination, unlawful disability discrimination, and unlawful retaliation. Recent court decisions, comprising six and sometimes seven-figure verdicts, tell an unfortunate tale.

Here's the take-away: layoffs and rehires are not just business decisions; they are also legal decisions.

The solution revolves around the establishment of legally-compliant, objective criteria for who stays, who goes and who comes back. Legally-compliant: confirm with counsel that the factors you will rely on are permitted under law. Your common sense will not be enough. Objective: take as much subjectivity out of the decision-making process as you can. When you rely on an objective standard (documented evaluations, disciplinary record, performance data...) it becomes much more difficult for a litigious employee to prove that you based your decision on an unlawful bias. Thereafter, it's crucial to apply those criteria consistently -- if you make an exception for a man but not a woman, or a Caucasian but not a minority, your motives may be challenged, often successfully.

And when all is said and done, make certain to properly document what you did. If you can't prove that you did things the right way, it will be much easier for the other side to prove that you did things the wrong way.

Let us know if we can help.