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Document experience to justify who stays after RIF

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In uncertain economic times, employers place a premium on flexibility. That includes being able to retain the most talented, productive and experienced employees, and perhaps terminating those with more seniority.

But that can lead to discrimination claims over age and other characteristics. Protect your organization by clearly documenting your business reasons for preferring any junior employees to those with more time on the job. Those reasons can include experience levels, achievements and other factors.

Recent case: Jorge Montiel, who is Hispanic, sued the city of San Francisco after his unit was laid off. He claimed that the city’s “budgetary reason” for the termination was just a pretext for discrimination. Plus, Montiel noted that two non-Hispanic co-workers were placed in other positions while he was not, although they had less seniority than he had.

But the court looked at their actual experience levels and concluded that, while Montiel may well have had the most time on the job, the two co-workers who landed other positions in fact had more experience. Time on the job wasn’t the most valuable commodity, but the experience each brought to the city. The court ruled experience was a legitimate business reason for selecting them over Montiel. (Montiel v. City and County of San Francisco, No. C-06-5486, DC CA, 2007)

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