Lay Offs

Elizabetharess

Recently two employees were "laid off" in our company. Neither lay offs went through HR so again it is after the fact for me.
Anyway, an employee came to me and said that a person that laid off one employee told her, the employee coming to me, that so and so was never coming back. The laid off employee was promised a position if the department he was laid off from started back up. But the supervisor does not intend to rehire.
The other employee that was laid off is a similar case. The supervisor laid off the employee and told the employee if the department can start back up, he will be rehired. I let the supervisor know that if we do open the department again, this person laid off must be given first offer on his old position. The supervisor plans to split the old job, make it hourly and a few other things. The duties will be the same as in the past but now two jobs to the one before and in addition the new position is seasonal and non-exempt.
Although there is no law governing this, it has always been a standard practice to follow that the term Lay Off is just that and we rehire. I have spoken with attorneys on this issue in the past and have always been told that 1. the six month wait doesn't apply and that 2. if you can't stand the scrutiny of a good labor law attorney you must offer the laid off employees their old jobs back when they become available.
I would appreciate your feedback on this and thanks this is a great site.
ERS

NaeNae55

My opinion only: employees who are laid off believe that it is due to company financial decisions and not because they are poor employees. Though many companies use RIF to get rid of bad employees in practice, in public it is just to meet financial goals.

An employee who is told they are laid off and then not considered when things change would have every reason to believe they were let go for discriminatory reasons.

If you are going to fire someone, do it. If you want to lay off a position, then you must keep that person in mind when the situation changes. If you are not union, you may not necessarily have to hire that person back. But you must at least look like you are considering them fairly.

Good luck!

Nae

ray a

I agree with Nae. First of all, make it clear to your supervisors that no layoffs or terminations occur without first going through HR. If there is a lawsuit, you will be the one to defend it, so you ought to be part of the entire process.

Typically, when we lay off we start at the bottom of the rankings and work our way up. We lay off the poorest performers. With rare exception they are told it is a permanent layoff and not to expect to be recalled. NY does have two categories, temporary layoff and permanent layoff - your state may differ. If I tell someone it is a temporary layoff and give them an anticipated return to work date, then I am obligated to recall them first before hiring new ee's. But, telling them it is permanent allows me to hire potentially better performers when work does pick up.

Your supervisors were wrong to give these people false hope that they would be rehired if business picked up again with no intention of doing so.

WT

This is all in the area of polite fiction and avoiding conflict. It is easier to lay somebody off and pretend there is a road back than to let them go because they are a poor employee.

In your case, what is done, is done. Most people move on with their lives and if there is a significant amount of time passing, they will no longer want or need to come back. Further, it is not illegal to lay somebody off for being a poor performer. However, if possible, you should make supervisors consult with HR before any terminations including layoffs. It goes without saying, that management should not confide their motives, plans, or any hidden agenda with the employees. That only makes you look deceitful.

System

The traditional meaning of a lay off is a termination for some business reason, such as financial necessity or lack of work. Most people understand that still to be the case (which is, for example, why people typically don't say they've been "fired" when they've been laid off, and why Wisconsin's Department of Workforce Development refers to "layoff" and "termination" as two separate things). One can try to argue that when you "laid off" the employees you really meant that they were just plain terminated, but a court or a jury typically won't buy that, especially in this case, since the employees were told explicitly that the layoffs were *not* permanent - they were told that they would get their jobs back if business conditions allowed.

What's most important in your situation, however, is that your company's standard practice is to rehire laid off employees. It is essential that you apply your company's policies and procedures consistently to all employees, because the failure to do so may constitute evidence of discrimination. Therefore I would recommend that if jobs become available for the laid off employees, you treat them the same way you would treat any other laid off employee and return them to their jobs.

In addition, if the employees find out that someone else was hired back into their old (or similar) positions and they were not given the chance to return, in my opinion the company is inviting a complaint of discrimination. Employees typically file such complaints when they feel they have been treated unfairly, regardless of whether they actually have evidence of anything unlawful. Further, if employees feel they were given a false reason for their termination, they tend to think things like, "If they lied to me about why they were firing me, it must be because they were firing me for an unlawful reason," which only encourages them even more to file a complaint of discrimination. Incidentally, juries tend to think along the same lines.

Even if you're confident the company would prevail if the employees filed complaints, I suspect you'd like to avoid the hassle of defending a charge of discrimination, which, as you probably know, can be costly even if the company ultimately is successful in defending the claim.

So the moral of the story is: Make sure all discharges go through HR, and don't sugarcoat the terminations - though that may seem to make things easier on everyone, it only makes things more difficult in the long run. :-)

Elizabetharess

I am in total agreement and have made my position clear on this issue. I will just have to keep chipping away at the block.
Thanks everyone.

E Wart

One rule of thumb that I always tell my supv. when considering a lay off (which you didn't have the chance to do in this case) is that they would not anticipate hiring any new employees in this area in at least 6 months, and if they do, they offer jobs to the laid off folks first. Sometimes this changes their tune, and they get back on track to the real problem which is performance.
Also, you should have a chance to look around the company to see if there are other jobs available that these folks might be considered for.
E Wart