Monday, March 30, 2009

How to layoff the protected

Sunday’s New York Times ran an articles called When the Stork Carries a Pink Slip. It makes the point that there is nothing illegal about including pregnant women or women on maternity leave in a layoff. The same holds true for minorities, those over 40, the disabled, those out on FMLA leave, or anyone who happens to find themselves in any of the other groups protected by state or federal discrimination laws. What is illegal, however, is to include a pregnant women in a layoff because she’s pregnant.

Layoffs are supposed to be blind at to issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before a layoff is implemented, it is crucial to review the demographics of who is staying and who is leaving:

  1. You want to make sure that neutral selection criteria do not have a disparate impact on a particular protected group.

  2. You want to make sure that it does not look like the layoff targeted a particular protected group.

  3. You want to identify those risky inclusions (such as the new mom on maternity leave or the employee with a history of FMLA-leaves) who may need some additional incentive to sign off on a severance agreement and release.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or