Any employer who faces the prospect of layoffs should contemplate the possibility in advance and reduce to writing the manner in which the layoff will be handled. One real risk in selecting employees for layoff or recall lies in potential claims of unlawful discrimination.
The safest way for an employer to avoid a discrimination claim, if a layoff or reduction-in-force becomes necessary, is to select employees for layoff on a strict seniority basis. From the standpoint of maximizing operational efficiency, however, the employer generally is better served by making its layoff determinations on the basis of employee performance rather than tenure of employment. Consequently, an employer should seek to develop a layoff and recall policy that, although designed to retain the most productive employees, objectifies to the greatest extent possible the decision regarding which employees are to be laid off or recalled, thereby reducing the likelihood of liability in a subsequent discrimination lawsuit.
Although the specific details of the process utilized by the employer to select employees for layoff and recall need not be specifically communicated to employees in a written policy, employees should at least be...
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