Over the next few days, I’ll be filing posts about the ABA Labor & Employment Law Conference held in Denver from September 10-13 (my plans to post live ran afoul of some firewalls that labelled my site a "weapons" site. Who knew?)
With the unemployment rate at its highest levels in several years, it was no surprise that the program on layoffs and reductions in force was crowded. Some attorneys no doubt have had to deal with this issue before, particular in the recession early this decade. But since then, employers have become more sophisticated and the issues have become a little thornier to address.
As speaker Donald R. Livington, a partner at Akin Gump Strauss Hauer & Feld LLP and former EEOC General Counsel, pointed out, many employers know about giving employees 45 days to consider separation agreements arising out of layoffs. So, the task that in-house counsel need to focus on are the “other” issues that are trickier to spot.
- Think like a plaintiff’s lawyer. Find thd potential claims beforehand to fix issues from becoming problems.
- Determine if the company can articulate a clear business rationale for the RIF. If you can’t do it, you need to figure it. And check to see if there is documentation supporting this rationale.
- Analyze the rationale to see if it has any hint of bias. And don’t just think about discrimination laws, but think about ERISA laws as well that prevent employers from firing employees to prevent them from obtaining certain benefits.
But the single most important way for employers to avoid litigation is to have a separation agreement and release that’s enforceable. And for that, having a lawyer review your standard agreement may be time and money well spent.