Laying off employees

dmcote57 · April 2001

We have an employee who does not have the skill set to meet our business needs. Although she is dedicated to the company, she does not meet our expectations and level of experience. We would like to lay her off. Two questions: 1. Must we give a reason for the layoff? 2. If so, and we provide the explanation that the work load has lightened (which it has) but then turn around and hire someone else who does have the skill set, are we obligated in anyway to the person we are laying off. Any guidance would be appreciated. Thank you.

Susan Fentin MA · April 2001

Termination of employees is one area in which we always say honesty is the best policy. You don't say anything about this employee's age, race or membership in any other protected category, but if she were inclined to file a discrimination suit against you, giving her a reason that is less than truthful will hurt you in the long run. If she is an at-will employee, you do not have to give her any reason for her termination, but most employees expect some communication about why they are losing their job, and if she is in a protected category, giving her no reason at all might aggravate the situation. Better to be truthful. As always, if you are fair, consistent, and making the decision to terminate her for business based reasons, you will reduce your exposure. If you'd like to discuss the specifics of your situation further, give me a call or drop me an email.

Susan Fentin
Skoler Abbott and Presser
One Monarch Place
Springfield, MA 01144
(413) 737-4753
[email]sfentin@skoler-abbott.com[/email]

Margaret Morford · April 2001

If you lay off an employee due to lack of work (load has lightened) and then rehire someone to do that job, you run the risk of being sued if that employee falls into any protected class. While the reason you are letting this person go has nothing to do with their status in a protected class, you look dishonest to any governmental entity and/or a jury. You really have a performance problem with this employee and should call it that rather than a lay off, which indicates there's not sufficient work for this individual. You could pay her a severance as a way to help her transition in exchange for a release to insure that she doesn't turn around and sue you after she's gotten her severance. I would sit down and counsel with her about the fact that she is not able to perform the following duties sufficiently to meet the company's needs. List the things that she is unable to do and then say that the company needs someone who can do these things.

While I do not know the specifics of your situation, if the individual is an older worker, who performs a function that has been computerized and simply has no computer training, I would encourage you to send her for training. If she still can't perform the functions after training, document that and then talk with her about the fact that she is not performing up to standards and the company has no other choice but to terminate her for performance. Then offer her sufficient severance to get her to release any cause of action she may think she has against the company. At little money offered up front could save lots of money and hassle on the back end.

JodiL · April 2001

How did this person get hired in the first place? Better screening next time. Deal with it in the form of performace problems. Write her up for dereliction of responsibilities. Then, fire her if it is not corrected. That way, you'll also win unemployment.

Gar · April 2001

Is this a performance problem (has the skills but can't/doesn't want to perform) or a lack of skills problem? If a lack of skills problem, get the employee trained. If a performance problem, give the employee a reasonable period (30 to 90 days)to clean up her act. Document the process and if she doesn't "pass muster," fire her.

Miriam · April 2001

In the case where an employee who was over 40 years old, was hired as a fulltime regular employee and laid off from that position due to company cutbacks in that department. This employee was then offered another position in a different department only now they offered her a temporary classification and lowered her pay. Within that temporary classification, the company paid her benefits and sick time as well - Isn't this misclassification? Also, she was let go from this position because the company hired a person who was younger than her - doesn't this fall under the ADA or Older Workers Protection Act?

Does this employee have a case against that employer, if so, what FLA law has been violated if any?

Theresa Gegen TX · April 2001

It sounds like the employee may have a claim under the ADEA (Age Discrimination in Employment Act). The ADA is the Americans with Disabilities Act, which would not seem to apply. In addition, there may also be state laws that give the employee a valid claim.

However, the facts you have stated are very sketchy -- so it is impossible to determine if the employee could have a valid claim.

As for the misclassification issue, it appears that the employee was given greater benefits than she was entitled to. This normally would not give the employee a claim.

Really, to determine whether a viable claim exists, you would need to meet with an employment attorney to delve deeply into the facts (for example -- what was the employee told about the terminiation, did any one make any disparing comments about the employee's age).

Good Luck!

Laying off employees

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