Layoffs and call backs

Carolsmith · February 2006

On February 10th we laid off 23 employees due to lack of business over the past several months. Employees laid off were all office workers and we did not layoff according to seniority. Since the employees who did not get laid off have to be dependable and high performers, we laid off those that were at the lower end of performance and dependability.

My question is: If and when business picks up, do we have to call back those employees that we laid off (some had attendance problems and some were limited in multi-tasking)?

Another question: We are aware that a couple of the laid off employees have secured employment elsewhere. Do we have to call them back?

I realize that we possibly could be opening ourself up for discrimination since some are over 40 and the majority are women?

How can we do this and not legally get into trouble.

I need answers quickly, so please help me out.

Thanks.

dixied · February 2006

When you discussed the layoff with the individuals involved, did you tell them it would be a temporary or permanent layoff? I'm not sure in your state if you would have concerns if you classified it as temporary. You should not have to re-call ex-employees if it was deemed a permanent layoff.

Carolsmith · February 2006

Thanks for your response. We have a consulting firm working for us and the directive was put out to layoff x number from each area. I will need to check with each department head to see what they exactly stated. I do know that senior management stated that we had to have layoffs until business picks up. If a laid off employee secures another position, how does that affect layoffs. We are located in the Ohio. I will await your response. Thank you so much.

pork1 · February 2006

CAROLSMITH: Welcome to the forum,I have always followed the general rule that "last in first out", giving all things are equal. This tempered with management common sense to declare position and job task critical for protection regardless of the seniority. To bring back on board as the business begins to become more healthy, "last out first back in" also has worked well for me. Performance and history of an individual's ability to keep up or be in tune with the re-bounding company and the fast paced actions now on going for the good of all must also take a place in the chain of events.

Poor performers and those that are no longer available for the new jobs and positions must be over looked, there is no obligation to re-call unless you gave them that as a general statement or a matter of written record. Both, I hope did not take place.

Good luck with the return to having another period of exciting times.

PORK

Carolsmith · February 2006

Thanks Pork. You have been very helpful.

Whirlwind · March 2006

Carolsmith, sorry to chime in so late but here goes: It's useful to have a reduction in force (RIF) policy that sets forth (1) objective, job-related criteria to determine who will be terminated should a RIF become necessary and (2) a statement of whether/how RIF's former ees will be able to regain employment should the employer be in a position to start hiring again. We've been fortunate to have minimal need for RIFs, but in our limited experience this policy has been invaluable. If you're interested in looking at our policy as an example, email me and I'll be happy to send it to you.

Absent any state statutes that govern such matters, your biggest exposure once you start rehiring soon after a RIF is that a member of a protected class will assert that the RIF was a pretext to disguise unlawful discrimination.

LarryC · March 2006

Whirlwind, what in the sam hell are you doing up at 00:18am? By the way, what is 00:18 am?

Whirlwind · March 2006

Eighteen minutes past midnight is when I do some of my best work .... or if not my best work, at least that's when I have time to get on the computer. x:-)

Carolsmith · March 2006

Thanks Whirlwind. certainly I would like to look at your policy since we do not have one. My e-mail is [email]HR@tstate.com[/email] We have recently put in a new computer system and if it doesn't recognize incoming e-mails often it won't go through, so if not use my personal e-mail which is [email]deckersmith@yahoo.com[/email]

WT · March 2006

Since you did not lay off by seniority, clearly you are not working under a union contract. Some employees will never be top performers but can do some work. Trained employees have some value as there is no guarantee that a new hire (who must then be trained) will be significantly better. On a practical basis, the first question to be asked is whether you want any of those employees back. If so, you should know which ones. I would call them back first and never get around to calling back the problem employees. Talk to the supervisors, go over attendance records, look at performance reviews if such things exist and make a logical and reasoned decision. I would document the process. Then, if there are issues, you have a clear and business related reason for your actions and you had it before anyone complained.

ray a · March 2006

We always lay off the lowest ranked performers and rarely call them back since they already have track record of less than stellar performance or attendance. Our philosophy is when we do need to add more people, we can probably do better than the ones who were laid off.

pork1 · March 2006

Ray: My concern with your system is the supervisors/chain of authority/management are not really required to give honest evaluations for they know that in a lay off the lowest performer will be gone. Therefore, the sup does not have to train/evaluste/dismiss, when appropriate.

PORK

ray a · March 2006

Pork, if we had lay offs often you'd be right. Our last lay off was 3 years ago this coming spring. The previous one was 2 years prior. With the big gaps, leadership must do their jobs. We rank our ee's quarterly and I watch for discrepancies or sudden changes and challenge if I believe the leader is "playing games" with the process.

pork1 · March 2006

[font size="1" color="#FF0000"]LAST EDITED ON 03-02-06 AT 02:03PM (CST)[/font][br][br]I concur, you are one of the very few that has that ability to control the actions of supervisor/chain of authority. I for one do not have the time nor the desire to police the management chain of events. When it comes down to it, if it is a not violation of law or a safety issue, I do not even think of coming to your level.
Congradulations, now I can say there is one in our peer group.

PORK

Is it just me or are we some how a more peacefull and productive group of professionals, these days?

E Wart · March 2006

I have been involved in "lay offs by seniority and by "performance", neither are fun. Seniority is the "easiest" as far a justificaiton, etc., but in my opion, the worst for the Company. Doesn't necessarily give you who you need.
Normally what should be done is each employee in each area should be evaluated. Then you need to look at the jobs that will be remaining and try to select the best person for the job. (Issues like attendance, etc will rise when you do the evaulations.) Then make the decisions based on this. Often you will see what you are doing is really "eliminating positions" rather than laying off people.
Now, if the person who was laid off doesn't meet the requirements of the "newly opened" job, you don't need to consider them for the job. All you have to say if asked is they are not qualified. However, if they are, you should offer it to them, even if they have another job. Don't worry about that, not your business. They can turn you down if they want. If they turn you down, you are "off the hook" for future job openings unless you to make them offers. The main thing is don't "construct" jobs to fit someone, construct jobs to fit the company/your needs. Then make offers accordingly. Also, don't use a lay off to get rid of employees you should have let go years ago. This is a supv. problem. If not documented, they should be given rehire offers if qualified for the job.

E Wart

WT · March 2006

Sorry but I cannot agree that a downsizing should not be used to get rid of dead wood. We all would like pro-active supervisors who are not afraid to evaluate fairly and do confrontation when needed. In the real world such supervisors are rare. (I require all my supervisors to send me evaluations and it is a rare one that I send back without some realistic changes based on performance) In many downsizing events, the timing and sequence of the action may dictate who goes and who stays. Since HR often has control of timing and sequence, why would you not save yourself future pain and misery by getting rid of problem employees. Lay-off is easier than discharge as you pay unemployment, thus it is not such an aversarial event. As far as offering reimployment to a past problem employee, I would find a way around that. We all get gun shy in HR due to laws and lawsuits, but sometimes we do need to take on at least some risk for the good of the company. A loss and an adverse verdict really stands out in our record, but you know, a rotten employee out in the system for years can cost you far more. It is just harder to document all those costs and does not stick out so much.

Wildsporty · March 2006

I agree with WT. I personally do not have time to evaluate each employee. Therefore when we have cause for a layoff we do use it to weed out the non performers.

We also have a policy that we never call anyone back.

I have been here 23 years and we have rehired only 4 people.

E Wart · March 2006

I am sorry, I probably didn't express myself well. I don't mean you can't get "rid of dead weight" this way. However, when you say you have a "lay off" it shouldn't be because you can't figure out a way to get ride of someone. you should truly need to reduce the number of employees. I feel that if layoffs are done correctly and the "right people are kept for the right jobs" you will get ride of the underperformers since those are the ones who want rate highly in the pecking order. However, you aren't just "organizing a time to get ride of the bad folks". I guess I just said it wrong.
This is why I believe you don't do lay offs based on last hired first gone. They may be your best performers. You evaluate each person based on their capabilities and talents and attendance for the "new job" they will be doing.
E Wart

Wildsporty · March 2006

Actually that is not how we do it. We figure out which jobs (not employees) we can do without. If we have underperformers we move them to the unimportant jobs before the layoff.

For example in our most recent RIF (reduction in force) our words for layoff. We have a call center with 30 members. We simply told the supervisor we need to cut 1 position from Chinese Services, 1 position from Elite services, and 4 positions from the main customer service department.

We than cut out the Administrative assistant from our Marketing Department and combined the job duties of the Administrative Assistent in Administration and had only 1 person doing the job.

We cut out a warehouse position and moved a call center employee over to the warehouse to cover that position The warehouse person was cut because of attitude.

We cut out a warehouse position in a couple of remote offices, left the position open for the next 6 months and than hired a temp for the next 3 months and fineally hired a new employee.
Those two employees were also cut for Attitude and also for attendence.

We allowed 4 problem employees above to be included in the RIF instead of firing them so that they could draw unemployment and also receive their severence packages. We feel this is better for our company.

Shirley

WT · March 2006

E Wart I think I have seen what you are talking about. If a non performer gets "laid off" and somebody elese is immediately hired to fill the slot and do the work, then the polite fiction of a lay off gets pretty thin. Also, some sort of legal action is likely. That generally happens in places that never want to fire anyone. On the other hand, if a true reduction in force is at hand, then it is logical to get rid of dead wood.

pork1 · March 2006

WT: Wait a minute, since you are so deeply involved and "grading papers/grading evaluations" it would appear that your system has everyone pegged and should be marching out the door in the most timely fashion with promotions and terminations!!!! Do you not know that unemployment is ultimately more costly in the long run. Because your company has more luck with the lay offs than you do with the law suits.

I have more fun every day preparing my defense of our un-employment claims than I ever do with RIFs/lay-offs. This company has only lost one Unemployment hearing in 6 years. That one was handled very poorly by our retained attorney. That was the day that I put up my shield and went to work preparing and presenting our cases. Preparations includes training of the senior leaders and the careful influence of the process as we move from bad employee to gone employee with no right to draw un-employment!

Sorry, I just could not resist singing out loud!

PORK

Margaret Morford · March 2006

Carol,

Did you have any policy on the books about lay-offs at all at the time you did the lay-offs? If not, what has been your practice about recalls in the past? Did anyone with apparent authority tell people they would be recalled when work picked up? You may need a little legal advice from your particular state for those questions.

I also have a lay-off policy that I will send you that lets you lay off the lowest performers first based on objective criteria and skill set. If you get over the legal hurdles, I don't think you have to recall anyone with DOCUMENTED performance problems. But I would tell them if they call that you are not going to rehire them because they have a warning in their file or a needs improvement recent performce review, etc. If you have no documentation and they are in a protected class, you will have difficulty proving that they are a poor employee and that's why you are not asking them to return.

As far as the people that have other jobs, if you want them back, call them. They may hate their curent jobs and wish to return. Think about whether you'd restore their old service date or give them an adjusted service date if they returned.

Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Layoffs and call backs

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