Legal Eye on Layoffs

 Think that layoffs are getting easier just because they have become so commonplace in today’s economic environment?  Think again!  Layoffs present greater risks than ever for HR professionals and their organizations.  Tamsen Leachman, who leads the Employment and Labor Law team at the firm of Dunn, Carney, Allen, Higgins and Tongue, makes a strong case.  Tamsen’s passion for employment law was ignited by landmark civil rights legislation enacted while she was attending law school.  Her focus and enthusiasm is apparent in the effectiveness and zeal with which she represents her clients.  Click here for Tamsen’s bio.

Kit:  What are the trends regarding complaints of discrimination triggered by layoffs of boomers?

Tamsen:  Overall, complaints to the EEOC and state enforcement agencies are up and that includes allegations of employment discrimination on the basis of age.  These agencies have stepped up enforcement now that they have more resources and staff available to investigate complaints.  This spells higher risk for employers.

Kit:  How should you go about selecting which employees to lay off?

Tamsen:  Take a careful look at how you are currently structured, where you may be overstaffed.  Break out job groups and decide which functions really matter to your business.  It’s helpful to develop a matrix structured on the basis of employees’ skills sets, longevity, ability to absorb additional responsibilities and the like.  Not only is this an essential tool for use in planning, it establishes your process as rational and based on objective business needs, not bias.

Kit:  What’s an example of a key legal risk mitigation responsibility performed by HR during a layoff?

Tamsen:  Among the many essential contributions HR professionals make is to assure the quality and integrity of the process.  HR should monitor layoff implementation to make sure that it is done in conformance with the plan, that errors are quickly corrected before they rise to the level of serious exposure for the company.

Kit:  Why should an employer consult an attorney before a layoff is conducted? 

Tamsen:  There are many reasons.  One that is especially important is the creation of attorney-client privilege.  Planning and implementation of RIFs requires open and honest dialog.  The attorney is able to confidentially advise the employer based on complete information which the attorney-client privilege protects.  Another example is that the attorney is able to alert the employer client of legal and regulatory developments that impact layoffs and how they are conducted.  Having access to this information in advance of action by the employer is of great value to achieving a successful outcome.  Further areas of assistance include a legal review of documentation needed including forms and releases that must be gathered to establish that layoff procedures are correctly performed.

Kit:  What is the importance of the exit interview in the layoff process?

Tamsen:  The exit interview can contribute a lot of useful information to the employer.   Employees who are laid off offer information about perceptions of the layoff itself and the organizational climate that can have a significant bearing on how future events should be handled and many other aspects of the employment relationship.  Questions posed to those departing the company should be open ended in order to get the best responses.

Kit:  Thanks, Tamsen for providing members of our blog community with this essential information about a very risky HR activity.