Laid Off or Fired?

Robertharpool

A manager (Jim) in our organization who performs a critical business function came to work and was notified by the General Manager that in an effort to reduce company payroll expenses he was to be laid off effective immediately.
Jim has worked for the company for 9 months and has never been subjected to any disciplinary action however he did not see eye to eye with the GM on many issues.
On the first day after the "lay off", the other managers of the organization were informed that the GM would take over the critical tasks. On the second day the GM informed the management team that the tasks would be split among other managers. On the third day the GM stated that someone would need to be hired to fill the position. Soon, the individual who held the position before Jim (Peg....who separated voluntarily) was rehired. Two of the nine members of the management team have resigned out of protest over the way Jim was treated.
By all appearances, Jim was fired but due to lack of any disciplinary issues it was catagorized as being "laid off" so that his predecessor could be rehired. He feels that it is because he is a male.............the GM and 6 of the 8 managers as well as Jim's sucessor/predecessor are female.
Should the owners be concerned about any legal action by Jim? What legal recourse could Jim have? Is there anything in FLSA that indicates a person "laid off" must be brought back if the position reopens?

Don D

I agree with the way you assess this entire situation; however, I think you are getting a little ahead of yourself speculating as to all the potential outcomes and rights of those affected. It is indeed very problematic to claim such a personnel action was part of a RIF. The actions taken by the boss indicate just the opposite. In a true RIF he would have indeed eliminated the position, scattered the duties among the survivors and not have filled the position. What he has done is clearly show that he 'fired' the man, albeit in a chicken s--- manner, and refilled the job, period. His protestations and assertions to the contrary will be useless and will fall on deaf ears. The affected manager could have all sorts of possible charges: Age, Race, Sex, Physical Disability, National Origin.......who knows. You're there to protect and serve the Company, though, so don't be giving advice to the terminated employee.

jimlegal

For what its worth, it smells like fired to me. The employee will probably file for unemployment and other benefits if available in your area. Beware that in the administrative process when the facts are revealed, it may lead the employee to seek out an attorney. Just as I arrived we had an employee use documents & other information tendered in an administrative setting in an attempt to prove up a legal situation. You may want to speak with your attorney about this situation.

Gillian

This is the sequence of events. If the employee files a charge of discrimination, sex for example, an enforcement agency will look and see if there is an "on the face of it" appearance of discrimination. From your post, I could see where sex could be an issue. Then the company gets to come up with some nondiscriminatory reason why the change was made. Then the employee has the opportunity to state why the reason that the company provided is a pretext for discrimination. It is always a problem if a company cannot come up with a legitimate, business reason for a termination such as this.

Balloonman

Gillian,
Based on the outline of the facts that were laid out, it appears that the layoff was a transparent termination. The actions that follow destroy the credibility of the "lay-off" and followed by the hiring of a female to replace him looks like a situation I would not want in my lap.
My $0.02 worth.
DJ The Balloonman

Gillian

Correct, Balloonman.

ray a

As I see it, the terminated manager was a high ranking employee. He had been there only 9 months. Since there appeared to be performance issues with him, he could have been terminated (fired) without going through a progressive disciplinary process. With substantiated reasons for termination, most courts, from what my experience, do not champion upper management types. They are more concerned with protecting the rights of lower level employees who are more vulnerable to unfair management practices. So, in this case, calling it a layoff just complicated matters.

Don D

On a related note, with the salaried RIF we just went through two weeks ago, one piece of advice our attorney gave was this: In order to open yourself up less to challenge, the DUTIES of the employees whose jobs you eliminate should be 'scattered' among several employees, rather than simply assigning them all to one person. He said the latter can readily be seen as a charade and is typically viewed as a replacement just as much as if you actually HIRED a replacement. Scattering the duties tends to shore up your case that you DID eliminate the job, not simply got rid of the old guy for an illegal reason and decided to call it a job elimination. (my note: every person who serves on a jury took that course back in college where you have to take a frog out of a bucket of formaldehyde and cut him up.......and, accordingly, they will disect you and your version of the RIF.)