layoffs- 2 questions

I just was given a list of layoffs to do for this week and on top of everything else that I need to be concerned about I just realized that one of the employees is out on FMLA.  Her 12 weeks is up next week but from what I have read about layoffs I gather that if she would have been eliminated anyway, we do not need to be concerned (as concerned).  Is this true?  Are there any other points I should be paying attention too in this process?  This is my first big lay off and I am on my own here.  We have prepared Cobra packages and severance aggreements with a severance equal to 1 weeks pay per year of service to a max of $10,000. We are also going to offer to put them in touch with our recruiter to assist with job placement and of course call them first if we are in a place to hire again (god willing)- anything else?


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  • Generally, that is true under FMLA, BUT the employer has to be more than ready  to show why the FMLA-protected employee was chosen (and not someone else). The best evidence is a bona fide nondiscriminatory reason related to economics and skill group. This has to be really well documented to stick. Depending on the size of the layoff, you might also need to give notice under the WARN Act. In the severance agreements, assuming that there is a waiver compenent, remember that anyone over age 40 is entitled to OWBPA rights, and specific OWBPA statements in the waiver. Finally and not inconsequentially, you need to do an impact analysis on the protected groups of workers to ensure that protected classes are not adversely impacted by the layoff.
  • The severance agreement came from my general counsel and under the waiver and release section it states:

    " In exchange for the special severance benefits promised to you in this Agreement, and as a material inducement for that promise, you hereby WAIVE, RELEASE and FOREVER DISCHARGE the Company and/or related persons from any and all claims, rights and liabilities of every kind, whether or not you now know them to exist, which you ever had or may have arising out of your employment with the Company or termination of that employment.  This WAIVER and RELEASE includes, but is not limited to, any claim for unlawful discrimination under the Age Discrimination in Employment Act of 1967, as amended (“ADEA”), Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, 42 U.S.C. § 1981, the Worker Adjustment and Retraining Notification Act (“WARN”), and the Family and Medical Leave Act of 1993, and any violation of any other federal, state or local constitution, statute, rule, regulation or ordinance, or for breach of contract, wrongful discharge, tort or other civil wrong.  To the fullest extent permitted by law, you PROMISE NOT TO SUE or bring any charges, complaints or lawsuits related to the claims you are waiving by this Agreement against the Company and/or related persons in the future, individually or as a member of a class, and you will immediately withdraw with prejudice any such charges, complaints and lawsuits that  you began  before signing this Agreement.  Nothing in this Agreement shall limit or restrict your right under the ADEA to challenge the validity of this Agreement in a court of law."

    As far as the WARN Act, we are letting 22 people go of a total of about 150, these guys/gals are all over NY at job sites and office locations.  We were not doing well before this recent economic downturn but this has really forced our hand here.  Can you point me in the best direction of how to perform an adverse impact analysis?

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