Employee Layoffs

By Deborah H. Petito, Esq. and Leonard Brazil, Esq.

Layoffs based on business necessity are permissible, but problems arise when an employer does not properly implement a layoff. It is equally important to understand how layoffs may affect existing or subsequent claims raised by other employees.

 A. Follow A Two Step Process When Implementing A Layoff

  1. Demonstrate Business Necessity

Unfortunately (in a business sense), these days employers may find it far too easy to establish that a layoff is based on business necessity. The need to reorganize or to reduce the number of employees due to a downturn in business should be well substantiated by internal company documentation.  This is also true when a position is eliminated.  Employers should document why the particular position was chosen for elimination prior to the actual layoff.

  1. Layoff Selection Process

While there may exist a clear and compelling business necessity to implement a reduction in force, the employer may face liability if it does not carefully analyze which employees are to be included in a layoff. Courts have found that an employer was justified in implementing a reduction in force, but concluded that the selection of the actual employee(s) laid off was motivated by an illegal reason such as the person’s age. The employer should do the following to minimize the likelihood of such a claim:

a. Identify the list of employees being considered for a layoff (“Target Employees”) and document the business reasons why those particular individuals have been identified, such as lesser seniority, performance, relative skills of the employees and other reasonable business criteria.

b. If there are other employees in the same or similar positions who are not being laid off, the employer should document why the Target Employees are being considered for layoff while the others have not been selected.

c. If only some of the Target Employees are ultimately selected to be laid off, there should be documentation which expresses the company’s reasoning as to the selection of those actually laid off.

d. When the employer has identified those to lay off, an evaluation should be made as to whether the layoff affects a disproportionate number of employees in a “protected classification,” such as age, race, gender or other classifications which may raise the issue of discrimination, harassment or retaliation. For example, if 8 of the 10 employees laid off are over age 40, the employer must be able to clearly articulate and establish the legitimate business reasons why those particular employees were selected.  If there is a concern of being able to establish such business justification, the employer should reconsider those to be laid off.

Senior managers and executives often rely on lower level managers to select the individuals who will be laid off. Senior management should make sure they review that process and the individuals selected to avoid claims of discrimination, harassment or retaliation.  Ultimately, the decision rests with senior management and trusting lower level management, without questioning who is chosen for layoff and why, could create liability and reflect poorly on senior management.

Also, keep in mind that if you are implementing a group layoff and are presenting the employees with a release of claims in return for a severance package, the release agreement proposed to employees over age 40 must include certain information about those being laid off and those employees who will not be impacted by the layoff. Additionally, if the layoff is part of a plant closing or mass layoff, the employer may be subject to the state and/or federal Worker Adjustment Retraining Notification Act which requires advance notice to employees of such a layoff.

B. How A Layoff Or Termination May Affect Other Employee Claims

The layoff or termination of an employee may have significant and unintended negative consequences to existing or future claims filed by other employees. An employer should consider the following when deciding to terminate or lay off an employee:

a. The departing employee may be an important witness in potential or existing litigation.  If so, it is critical for the company to apprise counsel of potential terminations or layoffs when such action is first contemplated.  Such employees may be hard to later track down, their memories may fade or they may become hostile to the company.

b. If a departing employee has relevant information regarding litigation, consider obtaining a declaration under penalty of perjury to memorialize the employee’s knowledge before it becomes faded or the employee becomes hostile to the company.  If the departing employee is being offered a severance agreement, consideration should be given to tying any installment payments to the departed employee’s continued cooperation in any litigation or potential litigation.

c. Implement safeguards to ensure that the departing employee’s e-mails, to the extent potentially relevant in litigation or potential litigation, are not deleted. The company should issue an internal records hold notice to identify files and electronic documents which are not to be deleted. Such a records hold notice should be periodically reissued within the company to account for new hires while such litigation is pending or threatened.

d. Obtain from the departing employee information as to where important files or e-mails may be located. Advise the departing employee to not delete any e-mails, discard any documents or remove anything from the company’s premises.

C. Conclusion

While employers have valid reasons for layoffs, they often fail to review the list of laid off employees in detail and are unaware that those chosen all fall within a selected category or that individuals present specific issues that may lead to litigation.   Also, employers often fail to consider the impact that an employee’s departure may have on current litigation.  Looking at the details before implementing a layoff and documenting why specific employees have been chosen, can help employers avoid litigation.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about employee layoffs or terminations, please feel free to email Deborah H. Petito at DPetito@ClarkTrev.com or Leonard Brazil at LBrazil@ClarkTrev.com, or contact our office at (213) 629-5700.

Clark & Trevithick is a full service Los Angeles-based law firm that has been representing clients throughout California for 40 years. The firm’s attorneys have broad expertise which permits Clark & Trevithick to provide its clients with the comprehensive legal advice necessary to operate in today’s business environment. For more information, visit www.clarktrev.com

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