Laid Off? You Still Have Rights! Part 1: Is Something Fishy?
Published by James Peters November 14th, 2008 in California Employment Law, Discrimination, Retaliation, Wrongful TerminationIt seems like every day another company announces mass layoffs in the United States. While we are fielding more calls from potential clients than usual, they have not increased quite as much as overall unemployment.
I think part of this might be attributable to a common employment law misconception among employees, which is that they somehow have less rights if they are “laid off” than if they had been “terminated”. The only real difference, though, is that when someone is being laid off it usually means several employees are being terminated at the same time.
In wrongful termination cases this does give the employer a bit of an advantage in mounting a defense by pointing out that the employee in question was not singled out but instead terminated as part of a “restructuring” or “downsizing” along with several others.
However, someone still has to decide who to layoff and if that person has biases against older workers, working mothers, employees with disabilities, etc. that can often show through in trends after examining the characteristics of who was let go versus who was kept.
Personal vendettas can also come into play by supervisors who, for example, may not like how one of their employees complains about working long hours without overtime pay and on that basis alone selects them for layoff.
The most important thing a laid-off employee can do to protect their employment law rights is to objectively look at the situation and consider whether it makes sense that they were laid off, but their peers were kept. For example, who has the most seniority? Where do they rank in sales performance? Are their performance reviews better or worse than the others?
The next step is to consider whether there is any illegal reason the decision maker (or someone with their ear) would want them to be terminated instead of another, less-qualified employee. If there is such a reason and it makes more sense than simply selecting them as the most logical person to be laid off, the employee might want to contact an employee rights attorney to run the situation by them.
The best barometer I have found in employment law cases is that if the employee can look at the situation objectively and feels in their “gut” that something is “fishy,” that usually ends up being the case when we start digging deeper.
Table of Contents for This Series
- Laid Off? You Still Have Rights! Part 1: Is Something Fishy?
- Laid Off? You Still Have Rights! Part 2: Are You a Statistic?
- Laid Off? You Still Have Rights! Part 3: Get Your Vacation Pay
Tags
California Employment Law | Discrimination | Retaliation | Wrongful Termination
DISCLAIMER
hello,
I was just nottfed by my company HP that I been targeted as candidate for workforce reduction and feel I have been unfairly target because:
1) I returned to work on Oct 31 after being on disability since May 31 for a fractured clavicle fall (home injury from a horse)
2) Prior to my fall at the request of my doctor I ask them for ergnomic evaluation do to on going hand and arm discomfort (after finding not contributed to my neck problems (DDD)The immediatley evaluated and found me to be at “high risk” and suggested changes in my workarea before it was implemented I had my injury, a week later my right hand went numb due ot carpal tunnel and i filed a workman comp claim, they denied it and i have sicne filed a appeal due with a QME doctor Feb 12. Now I’m laid off with my last day work being I can’t help but think even though layoff are common on Hp this had a lot to do with their decision. I been in good standing wiht HP for 6 years. What Options do I have or shoudl consider?
I have been laid off by a Fortune 50 company after 8 years. I had just returned to work on 10/31/08 after 22 weeks of disability leave from a injury from falling off my horse. Prior to my fall I a ergonomic evalaluation by company which was reccomended by my doctor because of my on-going complaints of arm and hand pain and tingling arms and hands (my job is 90% email correspondance)The results was I was “high Risk” they were proceededing to bring my work area to be ergonmically sound but before it was comleted it fell off my horse duirng the first week of my injurt my right hand went numb and thorugh my neuroglic test determined I had CTS. I filed a work comp claim, even though 4 of my doctors said it was work related, the workmand comp doctor said it was not and more to do with my age….I have since filed an appeal and have another appt “qualified medical examiner in Feb 09. On Dec 2nd I was told I been selected for “workforce reduction” and coincidently recieved the worse performance review in my 24 year career in Procurement. Something sounds very fishy to me….I like to know my options and If I do not find another job internally they given me until Feb 6th if I should consider filing legal action?
Thanks you,