No one likes to choose among employees for company-mandated layoffs. But if you're given this task, research and recommend choices with defensible reasons that you can back up. Don't manufacture termination motives or change your reasons once you state them. Get it right the first time, and express your reasoning consistently thereafter.
As this case shows, contradictory stories will kill you in court. That is true when terminating one employee or 100.
Recent case: Doris Appelbaum, age 60, worked as a secretary for 15 years before she was discharged in a downsizing. In choosing Appelbaum, her employer ignored the advice of department managers, who felt that a younger employee who was a poor performer would be a better choice.
When the HR manager first told Appelbaum of her termination, he said it was because of herand a confidentiality breach. Appelbaum sued, alleging that she had been fired based on her age.
At trial, the employer completely abandoned the claim of Appelbaum's poor performance. The HR manager said it played "zero role" in her termination. A jury found in Appelbaum's favor, awarding her $115,000 in lost wages and $87,660 in damages. A federal appeals court upheld the ruling.
The deciding factor? The employer's shifting explanations for the firing, the court said, were enough to suggest that age played a part in the termination. (Appelbaum v. Milwaukee Metropolitan Sewerage District, No. 00/2977, 7th Cir., 2003)
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