In uncertain economic times, employers sometimes have to cut staff and redraw org charts to stay competitive. That process typically takes time, as the organization considers its options and looks at alternatives.
Employees often know far in advance that change is coming—and that they may lose their jobs. And some already may be looking for ways to “get back” at their companies via lawsuits. Those employees aren’t really interested in staying on—they are more interested in being cut so they can sue. They may send out subtle signals that they don’t want to be picked for remaining jobs.
Smart employers, take note—and make notes. Later, if the employee sues, alleging some type of discrimination, you can testify that he wasn’t selected because he lacked any real interest in staying on. That’s a legitimate business reason for not considering the employee.
Recent case: Kenneth Austin, who is over age 50, worked as a maintenance manager for an electric utility that was merging with another entity. Once the transition took place, the quest to economize meant some employees would lose their jobs. The company offered everyone a severance package.
Before decided who would go and who would stay, Austin asked his supervisor whether he could leave before the transition and still get the severance payment. He also made it known that he wasn’t terribly interested in staying on after the merger, although he never told anyone he absolutely didn’t want to work for the new entity.
Austin wasn’t selected, and he sued, alleging age discrimination. But his claim was dismissed after a manager testified one of the reasons Austin didn’t get one of the remaining jobs was that he wasn’t interested. That, according to the court, was a legitimate reason and not evidence that age discrimination was at play. (Austin, et al., v. Louisiana Generating LLC, No. 06-31272, 5th Cir., 2008)
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