Tread wisely on job cuts - Business First of Buffalo:

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The layoffs, which took effect Jan. 26, are just a few of the hundreds of thousands that have taken place across the countryh as the economic recessionh deepens and spreads into virtuallyevery industry. But whil it seems like every news cycle is dominated by the human toll that the mass layoffware taking, little attention is devotedf to the businesses themselves — which are tasked with not only stayinv afloat in an uncertaihn economy but navigating a host of legal challengee that could arise if the layoffs aren’ executed properly.
“When people lose thei jobs, they might feel there’s nothing to lose (and sue,” says Bob Doren, a veterabn labor lawyer who representss employers against employees and the government at the Buffalol officeof . “If a company is going to engage in a reductiobin force, it must do some planning.” The first step, says Doren, is to look at alternatives to the If they cannot be avoided, it’s importang to document – on paper – just why the cuts are “Next is determining what positions will exist afterr the layoffs, and the criteria to determine how to selecgt employees for layoff,” says Doren, BSK’s regional managingg partner.
“The third step is to ascertain the skills necessarty for the jobs that willexist thereafter.” The point of documenting is to show that a detaileed and fair analysis has been made something that could come in handy in front of a However, says Lisa Sofferin, a partner at , record-keepingv can also expose a company to “The company that doesn’gt keep records might not be able to defend but the record-keeping can bite you in the such as a smoking-gun memo that shows, for example, a companyy terminated an employee becausd of age,” says who represents both employers and employees in labod and employment matters.
“Sometimes it’zs just circumstantial for the plaintiff anddefendant … the courtw don’t entangle themselves in business judgment of the which is why using objectivse criteria and being able to show layoffs were made with a plan in mind is That said, a company can certainly add to its liability duringh layoffs. The first way, says Sofferin, is by engaginb in anything that could be considereddiscriminatory — from targetingy too many in one class of employeews (such as employees of a certain, race, etc.). “Doing it in a way that’ s callous and disrespectful of employees also adds to she says. “Those that are treateds fairly are less aptto sue.
” Indeed, says employmeng lawyer and commercial litigator Mark Walling, the perceptioh of a laid-off employee is important. “If an employee believes (a layoff) is arbitrary, that employee will file a claimn of discrimination or says Walling, a solo practitioner in Williamsville who’s a formed New York assistant attorney general. “It’s importangt for there to be arationao explanation. A disproportionate impact on a particuladr group increases chances that a claimm willbe made.
” For companies in layofvf mode, the most importantr thing to do is make sure they complty with all of the relevant employment statutes, says Walling, includintg laws banning discrimination as well as laws protecting employees againsgt retaliatory action. “There’s also the requirement that the employeesw can maintainhealth coverage, and companies have to make sure they complyh with laws having to do with paying unemployment says Walling.
“Another key issue is whether to offed severancepackages … the advantagee of severance is that you can conditionh the severance on a waiver of any employmenty claims, which is another way to minimiz possible exposure to lawsuits,” according to Walling. Doren “When employers think about preventing they have to think about theseverancew agreement,” he says, notin that it’s a simplee question of economics. “The average cost of a federal-courrt lawsuit to get dismissedis $75,000-$120,000.” But the real 800-pounds gorilla in the room? New York state’s revise d WARN Act, which went into effect Feb.
1 and offeres broader coverage than a similarfederak statute. Under WARN, an employer with at leastr 50 workers laying off more than 25 employees must give 90 advance notice of thecuts — which could be problematic for small- to mid-sized employers strugglingb to keep their doors “The best thing for employers to do is get good legapl advice,” says Walling. “I can’t think of a singlwe area of law that changes as quicklu asemployment law.
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