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Track declining productivity to justify staffing, pay and promotion decisions

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in Discrimination and Harassment,Employment Law,Firing,Human Resources

Part-time employees are often the first to get pink slips in an economic downturn. But watch out if your part-timers are disproportionately parents who have child care responsibilities. Don’t be surprised if those employees respond to a layoff by contacting an attorney.

The EEOC recently announced it will begin looking carefully at allegations that employees with family responsibilities have been singled out for discrimination.

To avoid an EEOC complaint, be proactive. Make sure you can justify the economics of your decision to cut part-time employees first. One way is to document falling productivity or declining workloads.

Recent case: Jill Nolan is a lawyer who worked part time for Pittsburgh’s Swartz Campbell law firm as a workers’ compensation attorney. She has several children and worked part time to spend more time with them.

Nolan worked three days per week and earned an hourly rate. Each year, the firm assessed her value by taking her billable hours and subtracting the number of hours she was paid for. The result was the revenue she generated for the firm.

Nolan left the firm (she claimed constructive discharge—that she had no choice but to quit) and sued for sex discrimination. Her charge: The law firm treated her poorly because of her status as a working mother. She complained that she had failed to get a raise when others did.

But the firm showed the court that the revenue she generated was declining. Essentially, Nolan was not earning enough for the firm to justify giving her a raise. She couldn’t attack that logic, since it was based on cold, hard facts. (Nolan v. Swartz Campbell, No. 2:05-CV-1508, WD PA, 2008)

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