Q. We need to cut two employees from our marketing department. One of the employees we would prefer to keep was hired only six months ago. If we don’t base our decision on seniority, are we more susceptible to discrimination claims?
A. While seniority may be a nondiscriminatory method to select employees for a reduction in force, it isn’t the only factor you can use. You can certainly make your decision based upon other legitimate nondiscriminatory business factors such as employee performance.
When you rely on more subjective reasons for your decision, it can be harder to defend against allegations that the decision was based upon discriminatory motives. The more you can point to objective criteria (for example, attendance records, sales or production statistics and customer feedback), the easier it will be to justify your decision.
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Review the facts ahead of time before making a final decision. That will help you make sure the decision will be defensible if it is ever challenged.
What evidence supports your position that the performance of the employees you decided to keep was better than those selected for layoff? Does the layoff disproportionately affect members of any protected classes? Do all of the managerial employees involved in the decision agree with the performance assessment?
Figuring out the answers to questions like those ahead of time will help you assess whether, and to what extent, the layoff decision may pose legal risks.
Trouble-Free Terminations provides practical guidance on:
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- How to ensure that your written policies and handbooks support termination decisions.
- The right way supervisors should effectively track and document discipline and performance issues in order to support legal terminations.
- How a well-constructed severance agreement and release can help to avoid a lawsuit.
- The correct step-by-step protocol for terminations and the common mistakes that occur in poorly planned terminations.
- What must be addressed during and after termination meetings to comply with applicable laws.
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