Economic conditions require worker layoffs? Be honest about reason for termination

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in Discrimination and Harassment,Firing,Human Resources

No one wants to have to explain why an employee just lost her job. But passing the buck and coming up with inconsistent excuses are the worst possible approaches. Instead, make sure the information comes from one source—preferably HR—and stick with a defensible reason. If business reasons compelled the termination, say so.

Recent case: Judy worked the night shift as a security guard for more than 20 years. For most of that time, she was assigned to patrol a Coca-Cola bottling plant, where she checked trucks and warehouses to prevent thievery.

The plant ran three shifts, with two security guards per shift. Then the plant told Judy’s private security company it didn’t want to pay for two guards per shift. It said its security needs could be met with one full-time guard per shift watching over the facility from a control room filled with cameras.

As a result, management told em­­ployees that half of them would lose their jobs, but that it would do its best to reassign guards to other facilities.

At that point, Judy was well over 60 years old, had worked many hours of overtime and had no intention of slowing down. Her night-shift partner was much younger and had worked for the company only for about a year. Still, her co-worker was chosen to stay, while Judy was told she didn’t have a job anymore.

She started asking questions, specifically why she was being laid off. One supervisor said it was because she wasn’t a “team player.” When she asked what that meant, he de­­ferred to another supervisor. That supervisor, in turn, told Judy a third supervisor had made the layoff decision. That supervisor denied he had done so and sent Judy back to the original supervisor.

Judy kept calling to see if any new assignments had opened up. Eventually, the security company quit returning her calls.

That’s when she sued, alleging that age discrimination was the real reason she had been terminated while the younger man had been retained.

During pretrial discovery, the company produced the form it filled out for all terminated employees, which appeared to have been altered to show that Judy wasn’t a good worker. It looked like her rating had been changed, and the form contained notes that her appearance had been unacceptable and that she didn’t work well with others.

Judy pointed out that she had never received any criticism in all the years she had worked as a guard. In fact, she had never received a performance evaluation at all.

It also turned out that the other younger guard who kept his job had been fired shortly after for poor performance. However, no one called Judy to tell her the job was open despite her frequent check-ins looking for work. Instead, the company hired an even younger man.

The court said Judy deserved a jury trial to determine if age discrimination was the real reason she had been fired. (Zacharias v. Guards­­mark, No. 12-174, DC MN, 2013)

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