Be sure to document justification for RIF

While you may not want to share the information with your employees as you prepare for a reduction in force, be sure to document the reasons.

That’s especially true if the underlying reasons are monetary—that you simply can’t afford to employ as many people as you have in the past.

It will be tough for an employee who loses her job to challenge that rationale.  

Recent case: Diane, the last of four engineering technicians hired in her office, filed several EEOC sex discrimination complaints. When business fell off considerably, her employer planned a reduction-in-force, and Diane was terminated.

She sued, claiming she had been fired in retaliation for her earlier complaints.

She told the court that there had never been a shortage of work and said that was evidence she was really fired in retaliation for engaging in protected activity.

The employer countered with evidence that it had always considered its budget numbers as it planned the layoff. It said the workload was never a consideration. In this case, there had been a dramatic decrease in the amount of customer demand, cutting into revenues.

The court dismissed the case, accepting the employer’s explanation. (Durant v. Padre Dam Municipal Water District, No. D065088, Court of Appeal of California, 2015)

Final note: Courts want to believe employers are acting honestly and fairly. Make it easy for them by documenting your decisions and showing that layoffs are nothing personal, but merely sound business decisions.

Layoff language: How to answer 4 key questions

Paul Falcone, a former Time Warner HR exec and popular author on HR issues, suggests these legally safe answers to common layoff questions:

1. “Why was my job chosen for elimination?”

A: “It was a business decision. Please don’t take this personally. When a reduction in force occurs, positions are eliminated. The people who are attached to those jobs get laid off. Selecting positions for elimination is so difficult because you realize people’s lives will be interrupted. That’s why I’m so sorry that this is occurring.”

2. “Who else is being laid off? Why me?”

A: “I can’t share who else is being laid off at this point. We haven’t spoken to the others yet, so I’d ask that you allow me to hold off on answering that for now.”

or: “Yes, yours is the only position in our department that’s being eliminated. I want you to know that you’re eligible for rehire once the hiring freeze is lifted, although we can’t guarantee that. For now, understand that we had to eliminate one position and yours made the most sense.”

3. “Who’s going to take on all of my job duties?”

A: “That was part of the pre-layoff analysis that we performed, and I want you to know that we looked at all the positions in our department and all agreed on the position that should be eliminated.”

4. “Wait. You can’t lay me off and keep Susan. I have more seniority!”

A: “I recognize that. We did indeed consider tenure in our decision, but it wasn’t the only factor. We also looked at how the roles could be reconfigured and redesigned when determining who would be qualified to assume the remaining job duties after the reduction in force.”