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Beware basing layoff on inconsistent ratings

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in Hiring,Human Resources

Here’s a reminder that it’s not always foolproof to base a reduction-in-force on rankings of employee performance. That’s especially true if the performance review used to pick who loses their job deviates substantially from previous reviews.

If there’s an obvious discrepancy between old and new performance appraisals, think twice about approving the termination list. A lawsuit may be lurking.

Recent case: Gerald was born in 1948, and began working in the elevator industry in 1970. In 2005, Otis Elevator acquired Eastern Elevator, the company where Gerald worked as a mechanic.

He was laid off during a reduction in force after Otis lost a contract and needed to cut one employee. Seven other mechanics kept their jobs; one was over age 70 and the other six were significantly younger.

Gerald sued, alleging that he had been picked because he was older and near retirement.

Otis argued it was clear that the company had a legitimate cost-based reason for the layoff and that it picked Gerald because he had the lowest overall score in customer relations.

But Gerald countered that the score didn’t match prior reviews, in which he had consistently been rated highly for customer service. That was enough for the court to authorize an age discrimination jury trial. (Kiesewetter, et al., v. Otis, No. 14-1517, ED PA, 2016)

Final note: It didn’t matter that Otis also kept one mechanic who was much older than Gerald. That’s a fact the jury can consider, but not enough to get the court to toss out the case before a trial.

Otis may win in the end if it can persuade the jury that it didn’t manipulate the review process in order to pick predetermined winners and losers. But it will have paid thousands in legal fees and lost time to litigation.

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