Marc A. Mandelman, a Member of the Firm in the Labor and Employment practice, in the firm’s New York office, was quoted in Metropolitan Corporate Counsel, in the Q&A “Navigating A Minefield Through Reductions in Force.”
Following is an excerpt:
Editor: What protected classes have to be considered as excluded?
Mandelman: The law doesn’t require any particular or protected category to be excluded from the selection process of a reduction in force, but selection criteria must be neutral as to all protected classes. In other words, the selection process should not be based on any protected class or status. There should be an objective business rationale as to how people are being selected. Nevertheless, it is important to analyze any potential adverse impact on all protected classes to assess the potential litigation risk that a neutral selection criteria might inadvertently adversely impact a protected class.
It is worth noting that insofar as particular protected classes are concerned, one area of difficultly for many employers is understanding how to manage the selection for layoff of employees who are on Family Medical Leave Act or disability leave. Whether or not dismissal is appropriate in these circumstances may depend on whether other similarly situated employees who are not on leave are selected.