Tread wisely on job cuts - Business First of Buffalo:

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The layoffs, which took effectt Jan. 26, are just a few of the hundreds of thousandds that have taken place across the country as the economic recession deepens and spreads into virtuallyuevery industry. But while it seems like everh news cycle is dominated by the human toll that the mass layoffszare taking, little attention is devoted to the businessea themselves — which are taskedx with not only stayinhg afloat in an uncertain economy but navigatinv a host of legal challenges that could aris e if the layoffs aren’r executed properly.
“When people lose their jobs, they might feel there’s nothing to lose (and therefore) says Bob Doren, a veteran labor lawyerd who represents employers against employeesd and the government at the Buffalo officeof . “Ifc a company is goinhg to engage in a reductionin force, it must do some The first step, says Doren, is to look at alternatives to the If they cannot be it’s important to document – on papere – just why the cuts are necessary. “Next is determiningt what positions will exist afterthe layoffs, and the criteriqa to determine how to select employees for says Doren, BSK’s regional managing partner.
“Thd third step is to ascertain the skillss necessary for the jobs that willexist thereafter.” The point of documentinv is to show that a detailexd and fair analysis has been made something that could come in handy in fronty of a jury. However, says Lisa a partner at , record-keepinhg can also expose a companyto “The company that doesn’t keep records mighrt not be able to defenr itself, but the record-keeping can bite you in the such as a smoking-gun memo that shows, for example, a companh terminated an employee because of age,” says who represents both employers and employees in labor and employment matters.
“Sometimes it’d just circumstantial for the plaintiff anddefendang … the courts don’t entangle themselves in business judgmeny of the company, which is why usinvg objective criteria and being able to show layoffs were made with a plan in mind is That said, a company can certainly add to its liabilityy during layoffs. The first way, says Sofferin, is by engaging in anythingh that could be considered discriminatory from targeting too many in one class ofemployeews (such as employees of a race, etc.). “Doing it in a way that’s callous and disrespectfup of employees also addsto exposure,” she “Those that are treated fairly are less apt to sue.
” says employment lawyer and commercialo litigator Mark Walling, the perception of a laid-off employe e is important. “If an employee believes (a is arbitrary, that employere will file a claim of discriminatiobnor retaliation,” says Walling, a solo practitionee in Williamsville who’s a former New York assistantf attorney general. “It’s important for there to be a rational explanation. A disproportionats impact on a particular group increases chances that a claimm willbe made.
” For companies in layoff the most important thing to do is make sure they complty with all of the relevan employment statutes, says Walling, including laws banning discrimination as well as laws protectingb employees against retaliatory action. “There’s also the requirement that the employeew can maintainhealth coverage, and companies have to make sure they complg with laws having to do with paying unemployment benefits,” says Walling.
“Another key issue is whethe to offer severancepackages … the advantage of severances is that you can condition the severance on a waiver of any employment which is another way to minimizes possible exposure to lawsuits,” according to Walling. Dorenh agrees. “When employers think about preventing litigation, they have to think aboutt theseverance agreement,” he says, noting that it’s a simples question of economics. “The average cost of a federal-courtr lawsuit to get dismissesdis $75,000-$120,000.” But the real 800-pound gorilla in the room ? New York state’s revised WARN Act, which went into effect Feb.
1 and offersz broader coverage than a similarfederakl statute. Under WARN, an employed with at least 50 workerss laying off more than 25 employees must give 90 advance notice of the cuts which could be problematicfor small- to mid-sizefd employers struggling to keep their doors “The best thing for employers to do is get good legalk advice,” says Walling. “oI can’t think of a single area of law that changes as quickl y asemployment law.
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