Nancy Gunzenhauser Popper, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “How Employers Can Avoid Bias in Recession-Driven Layoffs,” by Anne Cullen. (Following is an excerpt – subscription required.)
Following is an excerpt:
Many businesses are already beginning to cull their ranks to weather an anticipated recession, and while reductions in force may help a company's bottom line, they risk undermining diversity and sparking discrimination claims.
Economic experts predict that the U.S. will enter a recession next year, and worker-side attorneys say companies sometimes wield a bleak economic forecast as a cover for firing someone for an illegal reason, like because of their gender, race, sex or other protected characteristic. …
The issue often finds its way into the courts, as management-side employment lawyers say lawsuits making discrimination claims frequently follow reductions in force.
"There are often claims of discrimination following layoffs, whether those are individual terminations or when it's in these large groups," said Nancy Gunzenhauser Popper, an Epstein Becker Green member who counsels employers. "Even if the stated reasoning is not that someone was chosen for an improper reason, we see an uptick in claims following larger group layoffs."
For companies that must make cuts, here five steps they can take to protect workplace diversity and mitigate the risk of facing a discrimination lawsuit. …
Don't Forget Leave Law Protections
Employees who are on leave have federal protections as well, as the Family and Medical Leave Act bars companies from sacking someone because they're using FMLA time to manage a medical issue or care for a family member.
If a team member taking FMLA leave is on the termination list, experts said companies need to make sure that their rationale for letting that person go is sound. A company can legally fire someone using FMLA time only if the worker would have been affected without being on leave.
"It's important to be mindful of people who are within various protected leaves of absences, in addition to those who have protected characteristics," said Epstein's Popper. "It's an important thing to be thinking about during that selection process."
