This 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.

A Reuters story this morning deals with what is both one of the most liberal paid leave policies I have ever seen and also one of the most blatantly discriminatory.

Hime & Company, a Tokyo-based marketing firm, offers paid leave to employees who have a bad breakup, termed "heartache leave".  While this is quite generous and one could argue that such a leave is often necessary to regain your composure, the terms are quite interesting.  Employees 24 years old or younger only get one day off, those between 25 and 29 get two days off and those 30 or older get three days.

CEO Miki Hiradate explains the reason for these different policies: "Women in their 20s can find their next love quickly, but it's tougher for women in their 30s, and their break-ups tend to be more serious."

I won't go into the age discrimination implications for women over 40, because this story is from Japan and the odds of this happening in the US are virtually none (unless you work at Tribune, Co.--then all bets are off).