Reduction in Force, Mass Layoff, Site or Branch Closings

Just because a company terminates an employee under the pretext of a faltering economy and business outlook, does not mean that the employer’s unlawful acts are shielded. This is because it is unlawful for an employee to be selected for lay off because of their complaints of unlawful activity. In a Reduction in Force (RIF) or elimination of a position case, an employee will be entitled to discover the following information:

1. Whether the business reasons for the reduction in force or elimination of position and the anticipated economic savings therefrom were adequately documented.

2. The number of employees or percentage of the company’s work force affected by the reduction in force or elimination of positions.

3. The existence of adequately documented selection criteria and procedures for implementation of the reduction in force or elimination of positions.

4. Whether reduction in force or elimination of position decision was made on the basis of objective job related selection criteria and procedures or by reference of the individuals occupying the affected positions.

5. Whether the reduction in force or elimination of position decision was based on fair and objective performance evaluations of the affected employees.

6. Whether there was any consideration of alternatives to laying off the employee to achieve the economic savings anticipated from the reduction of force or elimination of position, such as shortened work weeks or work days, temporary shutdowns, voluntary reverse seniority lay-offs with partial pay, work sharing, reductions in authorized overtime, salary freezes or reductions, hiring freezes and/or early retirement incentive programs.

7. Whether or not any other persons have been hired after the employee was laid off.

8. Who assumed the laid off employee’s duties.

An employee can prove a case of retaliation by showing either direct evidence of retaliation or alternatively she can prove circumstantially that the termination was a pretext for retaliation. That is done by showing that:

1. The employer’s articulated legitimate reason for the adverse employment action is untrue, and/or that

2. intentional retaliation was more likely than not a determinative factor in the decision for the adverse employment action. The employer’s proffered reason for the adverse employment action can be rebutted by showing any weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions which would reasonably lead a fact finder to believe that the proffered reason is unworthy of credence.

The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring employers with 100 or more employees (generally not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week) to provide at least 60 calendar days advance written notice of a plant closing and mass layoff affecting 50 or more employees at a single site of employment. WARN makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs, and if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. Regular federal, state, local, and federally-recognized Indian Tribal government entities that provide public services are not covered. Employees entitled to notice under WARN include managers and supervisors, as well as hourly and salaried workers. WARN requires that notice also be given to employees’ representatives, the local chief elected official, and the state dislocated worker unit.