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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