Document decision-making criteria before choosing who stays and who goes in RIF

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in Discrimination and Harassment,Human Resources

Generally, courts don’t want to second-guess difficult business decisions. That’s particularly true for reductions in force.

Courts understand that during a RIF, perfectly competent employees may lose their jobs.

Any legitimate business reason can back up that decision.

Just make sure you document the reason before you terminate anyone.

Recent case: Robert, who was age 60 at the time, lost his purchasing job when TSS Technologies cut its staff. Just before, the company had hired two younger buyers to work with a new client. TSS Technologies explained that it decided to keep the new buyers be­­cause the new client wanted consistency.

Plus, the new hires had experience using software that was going to replace the system Robert knew.

Robert sued, alleging age bias.

But the court tossed out his case. It reasoned that the employer’s business reason for keeping the younger buyers was legitimate. Plus, Robert admitted he didn’t know the new software and thus was a reasonable choice for the RIF, even though he was a competent employee. (Trapp v. TSS Technologies, No. 11-3108, 6th Cir., 2012)

Final note: In this case, the younger employees already knew how to use the new software. That’s different than a situation in which the employer has to provide software training. Denying training to older workers but providing it to younger ones can be age discrimination in and of itself.

If training serves as the basis for picking who goes and who stays, that’s additional discrimination.

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