In a three-part article series, the Society for Human Resource Management (SHRM) turned to labor and employment partner Gerald Hathaway for insight on what employers need to know when planning or conducting layoffs.
Hathaway discussed common errors some employers make with layoffs and how to avoid them, such as disorganization when preparing the job title and age data that must be provided to laid-off employees ages 40 and older in order to get valid releases under the Older Workers Benefit Protection Act. He also mentioned the need to justify the choices made and emphasized paying attention to immigration issues.
Next, Hathaway addressed the importance of understanding requirements under the Worker Adjustment and Retraining Notification (WARN) Act and mini-WARN statutes. “States continue to pass WARN-like requirements. Be sure to know which states have done so,” he noted.
Lastly, Hathaway shared practices employers can adopt to limit potential liability for layoffs, including running a disparate impact analysis for all layoffs companywide, divisionwide, departmentwide and maybe plantwide. He explained that one objective factor could be the length of service with the company. “Seniority is pure, but if seniority is used, do not make exceptions unless extraordinary circumstances exist.”
Overall, Hathaway stated, “The losses incurred in discrimination litigation following a badly executed layoff can easily exceed the amount that was sought to be saved by implementing the layoff.” He added, “It is better not to have layoffs than to have layoffs. Look at other ways to save.”