The Layoff Checklist: Guidelines for Avoiding Lawsuits Following a Reduction in Force
- Try to avoid the layoff, if possible
- Document cost-containment efforts undertaken prior to announcing layoff.
- Define the business purpose for the layoff and document it.
- Establish legitimate non-discriminatory selection criteria, related to the business purpose for the layoff.
- Choose objective selection criteria over subjective criteria.
- Appoint objective, neutral manager or company representative to apply the selection criteria and implement the layoff.
- Apply the selection criteria uniformly and consistently. Make no exceptions.
- Give advance notice of the layoff to employees, including the 60-day written notice required under the Workers Adjustment Retraining and Notification Act, if applicable.
- Test-run the results of the layoff before implementing them, to identify any inadvertent or unforeseeable disparate impacts.
- Establish severance payment procedures and make sure they comport with the requirements of the Employee Retirement Income Security Act.
- Obtain releases from employees over 40, consistent with the Older Workers Benefit Protection Act.
- Establish procedures for dealing with immigrant workers.
- Employ legal counsel to perform a risk assessment and an adverse-impact analysis.
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