There’s no doubt that these are tough times. Last month the federal Equal Employment Opportunity Commission (EEOC) reported that workplace discrimination filings soared to an unprecedented level of 95,402 during fiscal year 2008, which ended September 30.
The EEOC statistics are astounding. Total claims went from 82,792 in 2007 to 95,402 in 2008, a 15 percent increase in just one year. Sexual harassment charges went from 12,510 in 2007 to 13,867 in 2008, the largest number of charges since 2002, sharply reversing a ten-year trend of flat or declining sexual harassment charges. Claims of age discrimination and retaliation charges saw the largest increases -29% and 23%, respectively. “The EEOC has not seen an increase of this magnitude in charges filed for many years,” said EEOC acting chairman Stuart J. Ishimaru. The EEOC speculated that the surge in filings may be due to multiple factors, including economic conditions and employees’ greater knowledge of the law.
Then look at the unemployment statistics: As of March, the unemployment rate was 8.5%, the highest level in more than 25 years. More than 2 million people have lost their jobs since the beginning of the year. That’s 2 million potential plaintiffs.
If your organization is contemplating a large layoff or reduction in force (RIF), be WARNed! That means compliance with the Worker Adjustment and Retraining Notification Act (WARN). This federal law generally requires employers of 100 or more full-time employees to provide a 60 days’ notice of plant closings (termination of 50 or more employees) or mass layoffs (500 or more employees at a site or 50-499 employees constituting at least 33 1/3% of the full-time workforce at a site).
WARN says that an employer must provide written notice 60 calendar days before a plant closing or mass layoff to employees or their representative (union), the State dislocated worker unit (unemployment) and the local chief elected official. There are some exceptions, such as when the employer offers to transfer employees to a different site within a reasonable commuting distance, or the layoffs are due to unforeseeable business circumstances or a natural disaster. In addition, WARN has complex regulations regarding the timing and aggregation of terminations, definition of a “site” and similar details.
If that weren’t enough, a variety of states, including California, New York, and New Jersey, have their own “mini-WARN” laws that set different standards. For instance, New York law covers companies of 50 workers or more and California law coverage starts at 75, but federal law only applies at companies with 100 or more employees. New Jersey requires a more detailed notice than the feds, and New York requires 90 days’ notice instead of 60. The federal Department of Labor provides some online resources for employers facing layoffs, including links to state dislocated worker units, where employers can get information about any mini-WARN laws that might be applicable.
What this means to you: Obviously, employers should get expert advice from a local employment attorney when planning a mass layoff or plant closing. There’s no doubt that many companies have a legitimate need to cut staff. The question becomes whether the companies have – and can prove – a legitimate basis for deciding who to keep and who to let go. It sounds clichéd, but now, more than ever, managers need to know the law on wrongful termination and the critical importance of documentation, and how to put that knowledge to practical use every day when tackling workplace problems.
