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November 17th, 2008 
James PetersThis is our second post in a series on employees' rights when they get laid-off from work. In our last post, I pointed out that even though an employee may have been "laid-off" with several other employees, that does not necessarily mean they were not wrongfully terminated in being chosen for layoff. This post deals with the situation where a large group may be "singled out" for wrongful termination.
For example, one of the most prevalent forms of class action employment law claims following a layoff is based on age discrimination. A company often decides that the best way to cut costs in a layoff is to get rid of those with the most seniority, because they are usually the ones with the highest compensation.
However, California employment laws state that where an employer terminates an employee because of their high compensation relative to other employees, that is proof of age discrimination where the high compensation is a result of that employee's age.
In other situations, the "decider" of who stays and who goes in a layoff may have their own biases (conscious or unconscious) against certain groups of people based on race, gender, national origin or other protected characteristics.
The easiest way to prove this sort of discrimination is through statistics. I have seen many layoffs where only those over 40 are laid off and then later replaced by new employees fresh out of college. Similar evidence can be used where a male decision maker only lays off the females because the men have families at home.
Sometimes the only way to tell if this sort of thing is occurring at the time without the benefit of statistics is through anecdotal evidence. However, under federal employment law if you are part of a mass layoff and over 40 your employer in most cases must provide you with a list of all other employees being laid off, including their ages and position.
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
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[...] America you better believe if you’re not in top management you should be prepared to get laid off or fired at some point in your life. Theres always going to be ups and downs in the market. [...]
Being laid off due to age is certainly a case of age discrimination. Hence, the terminated employee has the right to sue the employer. Evidence must, however, be submitted to prove that the employer purposely terminated the employee because of his age.
"under federal employment law if you are part of a mass layoff and over 40 your employer in most cases must provide you with a list of all other employees being laid off, including their ages and position"
What does "most cases" mean? How can I find out?
Thank you for this series of articles.
I have an additional question that was not covered. Can an employer (in California) require employees in a mass layoff to sign a letter stating that they accept that the termination was due to a mass layoff and that no discrimination was involved - especially as a prerequisite for getting a severence package?
Susan:
Thank you for your post. An employer can ask you to sign such a letter, but that does not necessarily mean it is true. However, it sounds like what you are being asked to sign is a release of claims, which would give up your right to bring a claim for wrongful termination anyway.
Sarah:
Like anything in the law, there are always exceptions to every rule. The only way to be sure that a situation applies to you is to contact an attorney.
What about personal vendetta? One of my co workers had ALL their work taken away by our manager and then the manager told the CEO/president of the company that co worker has nothing to do. My co worker eventually got laid off. It was getting so bad, the general manager took her under his wing to protect her from lay off. But the manager convinced the CEO to lay her off. Talk about WRONG. My other two co workers got laid off too. There hasn't been many lay offs at all since. And the excuse they're using for layoff is the economy. But really, the company has not been effected by the economy at all. I can go on and on but don't have much time. Sorry for the long story.