 As the jobless rate continues to rise, so does the chance that you or someone you know could be affected by layoffs. Employment law specialist Lee Feldman of The Feldman Law Firm in Santa Monica tells us that it’s important for workers to understand their rights because mass layoffs can often disguise wrongful terminations. Feldman and his firm have recovered more than $50 million from employers in the past decade on behalf of their clients. While there is nothing illegal about laying off workers for economic reasons, Feldman says employers must decide whom to lay off based on legitimate, non-discriminatory criteria. In California, employers cannot, for example, choose to lay off the highest paid workers if that would adversely impact older workers. Similarly, employers cannot legally (but often do) use the need for layoffs as a convenient excuse to get rid of "problem employees." When deciding whom to lay off, employers often ask their supervisors and managers for a list of employees without whom they believe they could still effectively manage their department. In other words, they ask supervisors to identify the employees they consider least valuable. Unfortunately, many supervisors consider employees less valuable when they engage in legally protected activities, like taking a medical leave under the Family Medical Leave Act (FMLA), California Family Rights Act (CFRA), or California Pregnancy Discrimination Leave Law (PDLL). Employees who need accommodations for disabilities are also viewed as "non-assets" by many supervisors. The reason for this is understandable, but still illegal. Supervisors making layoff decisions typically look to their own self-interest, and employees who exercise their medical leave and disability accommodation rights pose special challenges because they may be absent from work for 12-16 weeks every year, or intermittently and in smaller increments. Supervisors naturally (but unlawfully) value those employees who don't miss work more highly than those who do; thus, these employees become frequent layoff targets. Other typical layoff targets include employees who have engaged in "whistle-blowing," complaining about or refusing to participate in conduct they perceive as unlawful or unethical, including harassment or discrimination based on age, race, sex or sexual orientation. Many supervisors believe it will be easier to conceal a retaliatory termination by simply laying off the offending employee with a group of other employees. But if the motivation for the layoff selection was the employee's whistle-blowing activity, the termination is illegal. Employees notified that they have been selected for layoff are almost always offered severance in exchange for signing a release of all claims, known and unknown, including claims for wrongful termination. By signing a release and accepting the severance package you may be forever waiving your right to pursue more lucrative wrongful termination claims in court. Therefore, it is essential that you consider whether you may have been selected for layoff based on an illegal criterion and speak to an attorney before signing a release. Page: 1 of 1 pages for this article
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