View this article online: https://www.insurancejournal.com/magazines/mag-features/2010/10/18/160297.htm

Layoffs Don’t Have to Mean Lawsuits

The difficult economic conditions of the past few years are on top of most people’s minds. Challenging economic circumstances are adversely impacting individuals and proving destructive to public entities. The weak economy affects cities and counties everywhere, and no person or group is immune.

Layoffs have become increasingly common – and along with them, the number of employee discrimination cases has grown.Last year saw a sharp increase in the number of claims filed under the Americans with Disabilities Act (ADA), meaning more people are filing lawsuits claiming discrimination against their employers. More claims were filed by people with disabilities during 2009 than at any other time during the 20-year history of the ADA, with almost 21,500 related charges filed with the Equal Employment Opportunity Commission.

It’s no coincidence that increased layoffs and discrimination suits have a direct relationship. Two circumstances have helped generate this alarming fact. First, recent changes to the ADA have expanded the reach of the act, opening up benefits to those who were formerly not protected. Second, economic conditions have led to widespread workforce reductions, which makes employers more vulnerable to discrimination suits. Complaints include issues such as arbitrary firing (or dismissals), being overlooked for a promotion or not receiving proper accommodations to complete work.

Layoffs Done Right

To avoid lawsuits, employers must not inadvertently discriminate in workforce reduction plans, not only against those with disabilities, but also against those belonging to other protected classes. Terminating employees is never easy, but there are some suggested practices to minimize legal repercussions. Among them:

• Exhaust available options. Prior to layoffs, ensure all other alternatives have been explored. Reduce the number of temporary and part-time employees. Offer early retirement buy-out options. Establish an abbreviated work week.
• Communicate early and often. Advise employees as soon as possible of the coming changes. Hold individual meetings with affected employees. Make information available to all staff members so concerns can be addressed and the spread of misinformation diminished.
• Ease the transition. If possible, make assistance available to employees. Consider offering outplacement programs such as vocational rehab, family financial planning and health care/benefits meetings.
• Document everything. Document all actions and why those decisions were made. Have a clearly written plan on staff reductions and be sure to follow it.
• Work closely with legal counsel. Each step of the process of employee reduction, termination or furloughs should be scrutinized by legal advisers. Prepare legal counsel with documentation to ensure that there is not a violation of a federal law or an unintentional appearance of discrimination. Most insurance carriers are willing to provide assistance with employment practices and employment issues.
• Make security a priority. Tragic episodes of workplace violence are somber reminders that workplace safety cannot be taken for granted. Employing proper security practices can help ensure that employees are protected from a potentially dangerous situation. Businesses should train employees to recognize warning signs, such as employees making threatening remarks about supervisors and other employees. When layoffs occur, ensure current employees are safe from retaliation.

EPLI: Your Legal Protection

Layoffs come with a host of potential legal claims. State laws and other government entities, such as the EEOC, are also catalysts for discrimination suits. Risk managers should ask themselves: Do we have the right to reduce staff or employee work hours? Yes, absent a contract, union agreement or other employment manual, and as long as staff or work-hour reductions are not discriminating against a protected person or in violation of a federal or state law. All decisions regarding staff reductions should include the insight of experienced legal counsel.

Even when a layoff is conducted appropriately, lawsuits are sometimes inevitable. That’s where Employment Practices Liability Insurance helps protect a business against claims by workers that their rights have been violated. EPLI offers defense against a range of employee lawsuits, including discrimination, sexual harassment and wrongful termination.