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California RIF

California RIF. Would it be illegal to lay off employees who make the most money. Regardless of their seniority, age, quilifications, disiplinary record or lack of.
Also, would it be illegal to get rid of full time employees in a RIF, then hire new employees to do the exact same job function, but as per diem or on call only status.

Reductions in force or layoffs are considered by employers as a cost cutting strategy. If no alternative options are feasible HR/Management are faced with the daunting task of deciding which employees must be let go.

Be sure that company policy, past practice, employment contracts or collective bargaining agreements don’t establish a standard for which employees must be laid off. For example, many agreements state employees must be laid off in least seniority order.

It’s important to establish clear criteria for which employees will be laid off. Quantifiable or objective criteria like seniority, employee classification i.e. full time/part time/on call, or clear productivity numbers are safest. Subjective criteria like quality of work or skills tend to be riskier. Using employees’ salaries as the criteria alone may be lawful; however, employers must ensure doing so does not result in disparate treatment or have an adverse impact on protected groups. For example, older senior workers tend to make more money than their younger entry level co-workers; so, laying off only highly paid employees over the age of 40 could be perceived as age discrimination. Employers should clearly document the selection criteria used and the justification for business necessity.

Employers have to plan for continuing operations during and after layoffs. As previously stated, laying off employees based on their classification is lawful. Hiring per diem employees at lower rates to assume some of the work responsibilities is also lawful as long as the employer is basing the decision on business need and not a discriminatory factor. Using the example above, if the employer then decides to hire on call staff in their twenties the laid off employees may have grounds for an age discrimination lawsuit. The safe thing to do when filling jobs held by laid off employees is to make the employees aware of the new positions even if the positions are less hours and less money. There is no legal requirement to do this; however, doing so and documenting such efforts reduces the risk for perceived discrimination.

Lastly, employers must be aware of federal and state laws applying to group or mass reductions in force such as the federal Older Workers Benefit Protection Act (OWBA) and Worker Adjustment and Retraining Notification (WARN) as well as California’s Layoff Protection Act.

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This entry was posted on Thursday, April 3rd, 2014 at 9:59 am and is filed under
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