Tuesday, February 18, 2014

Can you have a one-person reduction-in-force?

Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.

In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:

In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.

In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.

This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.

So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.